K. Arjun Das vs Commissioner Of Endowments, Orissa

CIVIL APPEAL NO(S). 9576 OF 2010

K. ARJUN DAS …..APPELLANT(S)

VERSUS

COMMISSIONER OF ENDOWMENTS, ORISSA & ORS. …..RESPONDENT(S)

WITH

CIVIL APPEAL NO(S). 9577 OF 2010

JUDGMENT

Rastogi, J.

1. Signature Not Verified These appeals arise from the judgment dated 8th April, 2009 Digitally signed by R NATARAJAN Date: 2019.09.17 16:32:57 IST

passed by the Division Bench of Orissa High Court directing the Reason:

1

Commissioner Endowments to put the subject land in question

by fixing the upset price afresh and sell the property by public

auction with the liberty to the parties to participate and if the

highest bid goes less than Rs. 25 lakhs per acre, respondent nos.

4 & 5(appellants in the writ appeals) shall be responsible to

purchase the property @ Rs. 25 lakhs per acre and in the event of

non­deposit, the District Authority shall recover the said amount

as a land revenue.

2. The brief facts culled out and relevant for the purpose are

that the fit person, namely, Sunaram Sabat on behalf of the deity

Sri Rama Laxman Sita Swamy Bije at P.O. Luchapada, District

Ganjam filed an application under Section 19 of the Orissa Hindu

Religious Endowments Act, 1951(hereinafter being referred to as

the “Act, 1951”) seeking permission for sale of Ac. 4.255 decimals

of land belong to the deity indicated in the application and

referred to by the Commissioner Endowments, Orissa,

Bhubaneshwar in its order dated 22nd February, 2005.

3. It was pleaded that the subject land in reference to which

the permission is being sought was managed by him and is

2 recorded in the name of the deity under Sections 6 and 7 of the

Act, 1951 and it is lying barren and no income is being derived

by the institution and is in possession of the appellant (K. Arjun

Das, s/o K. Pitabas Das) for a long time and the income derived

from it is very scanty. According to him, the market value of the

subject land may be about Rs. 2 lakhs per acre and in case it is

sold, the sale proceeds may be kept in fixed deposit account and

it will fetch more than the present income and, therefore,

requested that the proposed sale is, therefore necessary and

beneficial in the interest of the deity.

4. After publication of the notice, opposite party entered their

appearance and also filed their written response. The

Commissioner Endowments directed Inspector, Endowments to

make enquiry and submit report. Pursuant thereto, the

Inspector, Endowments submitted his report dated 27 th April,

2002 indicating that after making local visit to the subject land,

he found the same as lying fallow and no income is generated for

the institution and in his view it will be beneficial for the

institution if the sanction would be accorded for the proposed

sale. He further opined that the value of the land would be in the

3 range of Rs. 5 to 5.50 lakh per acre and this has been assessed

by the Officer after visit to the office of Sub­Registrar and after

obtaining details of the sale deeds of the area.

5. The appellant in the instant proceedings, also filed affidavit

before the Commissioner Endowments that he is in possession of

the subject property as a tenant for the last 40 years and paying

bhag(share) of the crop to the deity. In support of the claim of

tenancy and paying bhag(share) notices of the Inspector

Endowments for deposit of bhag, various receipts of payment of

bhag were produced before the Commissioner Endowments

which has been placed on record in the instant Civil Appeal No.

9576/2010 at pages (32­40).

6. Taking note of the fact that application was filed in the year

2001, the Inspector Endowments submitted his report on 27 th

April, 2002 relying on the sale statistics of the year 2000 and

2001 and four years have been rolled by and there is always a

considerable increase in the market value of the land day by day

noticing the cumulative effect of the facts into consideration, the

Commissioner Endowments with due diligence fixed Rs. 10 lakhs

4 per acre as upset price and accorded permission for sale. The

appellant being in possession of the subject land, the

Commissioner Endowments considered it appropriate to offer

first choice to purchase subject land at the rate of Rs. 10 lakhs

per acre and in case he fails to purchase, the subject land be put

to public auction fixing Rs. 10 lakhs per acre as the upset price

and such auction be conducted in the presence of Inspector

Endowments and while disposing of the application vide order

dated 22nd February, 2005, apart from execution of the sale deed,

the order to be published in the religious institution and in a

conspicuous place of the locality where the property is situated

as per rule 4 sub­rule (2) of clauses (1) and (b) of the Orissa

Hindu Religious Endowments Rules, 1959(hereinafter being

referred to as “Rules 1959”).

7. Indisputedly, the order of the Commissioner Endowments

dated 22nd February, 2005 was communicated to the State

Government and also published in the manner prescribed in

compliance of sub­section (3) of Section 19 of the Act, 1951.

5

8. Under the scheme of the Act, 1951, the order passed by the

Commissioner Endowments is appealable by the trustee or any

person taking interest to the State Government under sub­

section (4) of Section 19 of the Act subject to the limitation

provided therein. At the same time, the State Government can

also exercise its inherent power if it appears to the State

Government that alienation is either not necessary or beneficial

to the institution or the consideration fixed in respect of the

transfer by exchange, sale, mortgage or lease of the property is

inadequate, invoking sub­section (5) of Section 19 of the Act,

1951 within the statutory period of 90 days of the receipt of the

order communicated under sub­section (3) of the date of

publication of the order whichever is later.

9. Since the limitation of filing appeal against the order of

Commissioner Endowments expired in terms of sub­section (4) of

Section 19 of the Act on 6th May, 2005, the sale deeds were

executed and registered in favour of the appellant in respect of

the land admeasuring Ac. 2.019 decimals on payment of Rs.

20.19 lakhs on 2nd August, 2005 and 30th August, 2005

respectively.

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10. Respondent no. 8(Chinmaya Mohapatra) being a person

interested filed appeal before the State Government on 20 th

September, 2005 against the order of the Commissioner

Endowments dated 22nd February, 2005 and simultaneously the

State Government also suo motu initiated the proceedings to

revisit the procedure adopted by the Commissioner Endowments

under sub­section (5) of Section 19 and in the pending

proceedings, respondent nos. 4 and 5(Lokesh Patro and

Debendranath Patro) filed their intervention application, inter

alia, stating that they are interested in a piece of land ad­

measuring Ac. 0.619 decimals for which they are prepared to pay

Rs. 30 lakhs per acre.

11. The State Government after taking note of the rival claims

and noticing that it was time barred claim of the intervenors and

also the fact that the sale deed for Ac. 2.019 decimals of land has

been executed by a registered deed on 2 nd August, 2005 and 30th

August, 2005 respectively and took note of the report of the

7 Inspector Endowments who also opined that land could fetch

Rs. 5.50 lakhs per acre in the year 2002 and the Commissioner

Endowments has granted permission to sell the land in the year

2005 at the rate of Rs. 10 lakhs per acre with preferential right to

the appellant. As regards the intervention application filed by

respondent nos. 4 and 5, it was alleged that they never pleaded

before the Commissioner Endowments despite publication nor

filed any appeal confirmed the order of the Commissioner

Endowments vide its order dated 30 th May, 2006. However,

further directed that with regard to the remaining Ac. 2.206

decimals of land, the same may be sold by public auction after

due publicity in accordance with law.

12. It is informed to this Court that despite order of the State

Government dated 30th May, 2006, no public auction for the

remaining Ac. 2.206 decimals of land has so far been held by the

authority as yet.

13. That order of the State Government dated 30 th May, 2006

came to be challenged by respondent nos. 4 and 5 who were

intervenors in the proceedings in a writ petition under Article 226 8 & 227 of the Constitution of India, inter alia, on the ground that

the present appellant was not the tenant and they were willing to

offer the rate of Rs. 25 lakhs per acre for the subject land.

14. The Single Judge of the High Court after noticing the facts

of the case observed that the land ad­measuring Ac. 2.019

decimals has been sold in February, 2005 by a registered sale

deed and is no more available for public auction and there is no

procedural defect in the decision making process pointed out by

the writ petitioners and the action being in conformity with the

provisions of the Act, 1951 dismissed the writ petition vide order

dated 25th February, 2008 with a liberty to go ahead for public

auction of the remaining land ad­measuring Ac. 2.206 decimals

after adopting the procedure prescribed under the Act, 1951.

15. The order of the Single Judge came to be challenged by

respondent nos. 4 & 5 in Letters Patent Appeal before the

Division Bench of the High Court which came to be allowed

under the judgment impugned dated 8 th April, 2009 on the

premise that there was no evidence to show that the appellant

was tenant and there was no basis to fix the price at Rs. 10 lakhs

9 per acre and accordingly directed the Commissioner Endowments

to put the total land as prayed for public auction at the rate of

Rs. 25 lakhs per acre which was offered by respondent nos. 4

and 5 and in case the property fails to fetch Rs. 25 lakhs per

acre, respondent nos. 4 & 5(original writ petitioners) shall be

responsible to purchase the property @ Rs. 25 lakhs per acre and

in the event of non­deposit, the District Collector, Ganjam shall

recover the said amount as a land revenue which is a subject

matter of challenge in the appeals before us at the instance of the

persons in whose favour the sale deed was executed and

registered in reference to land ad­measuring Ac. 2.019 decimals

dated 2nd August, 2005 and 30th August, 2005 respectively and

also by the applicants who later purchased a piece of land from

the present appellant in Civil Appeal No. 9576 of 2010 claiming

to be the bonafide purchaser, and their rights are being infringed

by the judgment of Division Bench impugned dated 8 th April,

2009.

16. Learned senior counsel for the appellant, Mr. Vijay

Hansaria, submits that it was an admitted case from the day one

when the application was filed on behalf of the deity before the

10 Commissioner Endowments seeking permission under sub­

section (1) of Section 19 of the Act, 1951 indicating that the

present appellant is in possession of the subject land in question

as tenant and this fact was nowhere questioned either before the

Commissioner Endowments or in the suo motu proceedings

initiated by the State Government in exercise of sub­section (5) of

Section 19 of Act, 1951 and in support of his status, he has

placed the receipts on record before the authority to establish

that he was the tenant and has paid bhag(share) for sufficient

long time and paying bhag(share) was also recorded by the

Inspector Endowments in his report dated 27 th April, 2002 and to

support it further, the receipts have been placed on record at

pages 32­40 in Civil Appeal No. 9576 of 2010 to which no

counter has been filed in rebuttal.

17. Learned counsel submits that the Commissioner

Endowments after holding enquiry under sub­section(1) of

Section 19 of the Act, 1951 of which a detailed reference has

been made fixed a valuation at the rate of Rs. 10 lakhs per care

as it reveals from its order dated 22 nd February, 2005. That

apart, there was a concealment on the part of respondent nos. 4

11 & 5 that they have purchased an adjoining piece of land from the

private land owner for a consideration of Rs. 6.50 lakhs per acre

by registered sale deed dated 27 th December, 2006. Still they

intervened in the instant proceedings to purchase a piece of land

extending an area of Ac. 0.0619 decimals and not the total

subject land which was purchased by the appellant ad­

measuring Ac. 2.019 decimals at the rate of Rs. 10 lakhs per acre

as fixed by the Commissioner Endowments after holding inquiry

under the Act, 1951.

18. Learned counsel submits that in the given facts and

circumstances, the blanket order passed by the Division Bench of

the High Court without appraisal of the evidence on record to put

the total land to public auction and nullifying the registered sale

deed executed by the competent authority in favour of the

appellant dated 2nd August, 2005 and 30th August, 2005 under

Article 227 of the Constitution of India is not legally sustainable

in law.

19. Learned counsel submits that it was not the case of the

respondent nos. 4 and 5 at any stage that the sale deed has been

12 registered either in contravention of law or being obtained by

fraud. In absence thereof, nullifying their registered sale deed

under the supervisory jurisdiction of the High Court under Article

227 of the Constitution of India was not sustainable and deserves

to be interfered by this Court.

20. Learned counsel in Civil Appeal No. 9577 of 2010 supported

the submission made by the appellants and in addition further

submits that they are the bonafide purchasers and both of them

have purchased the piece of land by a registered sale deed dated

24th June, 2006 and 6th May, 2008 respectively and at least the

land which they have purchased by the registered sale deed after

payment of due consideration could not be nullified by the High

Court under the impugned judgment and needs to be interfered

with by this Court.

21. Per contra, learned counsel for respondent nos. 4 and 5 who

have primarily opposed the appeals, while supporting the

judgment of the Division Bench further submits that from the

day one they had made an offer to purchase the subject land at

the rate of Rs. 25 lakhs per acre but no one has listened to their

13 request and this fact cannot be ruled out that the deity being a

perpetual minor and a person incapable to nullify the holdings

and ultimately the state authorities are under obligation to watch

the interest of such minor/disabled persons. The deity cannot be

divested of any title or rights of immovable property in violation of

the statutory provisions and this fact cannot be ruled out that

the property belonging to the deity must fetch the best possible

price which the respondents are willing to pay for the subject

land in question belonging to the deity which alone will serve the

purpose in upholding the best interest of the deity and whose

interest is to be awarded by the manager/trustee/pujari and

ultimately by the State Government under the provisions of the

Act, 1951 and that being the paramount consideration which has

been noticed by the Division Bench under the impugned

judgment needs no further interference.

22. Learned counsel during the course of arguments has

informed to this Court that if the total land in question ad­

measuring Ac. 4.255 decimals of Luchapada, District Ganjam

Khata No. 181 and 381 of which a description has been made by

the Commissioner Endowments, Orissa in its order dated 22 nd

14 February, 2005 is taken into consideration, he has instructions

to inform to this Court that his client (respondent nos. 4 and 5)

are ready to pay a sum of Rs. 75 lakhs per acre but no offer was

made for the remaining land of Ac. 2.206 decimals which has

been directed by the State Government to put to public auction

vide order dated 22nd February, 2005.

23. We have heard learned counsel for the parties and with

their assistance perused the material available on record.

24. At the outset, it may be noticed that the present appellant is

only concerned in respect of the land ad­measuring Ac. 2.019

decimals in reference to which the sale deed was executed and

registered in his favour on 2nd August, 2005 and 30th August,

2005 respectively.

25. Before adverting to the facts of the case, it will be apposite

to take note of the scheme of the Act, 1951. The State of Orissa

with its legislative competence introduced the Act, 1951 with an

object to provide better administration and governance of Hindu

public religious institutions and endowments in the State of

15 Orissa. The extract of the Section 19 relevant for the purpose is

reproduced as under:­

“Section 19 ­ Alienation of immovable trust property

(1) Notwithstanding anything contained in any law for the time being in force no transfer by exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to, or given or endowed for the purpose of, any religious institution, shall be made unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution and no such transfer shall be valid or operative unless it is so sanctioned.

[Explanation­A lease for a term not exceeding five years but with a condition of renewal permitting continuance of the lease beyond five years shall, for the purposes of this sub­section, be deemed to be a lease for a term exceeding five years.

(1­a) The fact of execution of a lease deed with a condition for renewal or renewal of such a deed shall be communicated to the Commissioner by the Trustee not later than fifteen days from the date of execution.

(1­b) After expiry of the term of the lease the lessee shall deliver possession of the leasehold land to the lessor, failing which, the Commissioner may take action in accordance with the provision of Section 68:

Provided that all structures, permanent or temporary, if any, constructed plants and machineries and other things installed and kept on the leasehold land, which is a subject­matter of a lease executed after

16 commencement of the Orissa Hindu Religious Endowments (Amendment) Act 22 of 1989 by the lessee, his servants or agents, shall become the property of the religious institution unless removed from the land within such period, as may be prescribed, after expiry of the term of lease, in respect of which the Commissioner shall take action under the provision of Section 68.

(1­c) Notwithstanding anything contained in the proviso to Sub­section (1­b), no property belonging to a person other than the lessee shall be subjected to confiscation under the said proviso, unless such person fails to remove his property within a period of thirty days from the date of publication of a notice which shall be issued by the Trustee within such period as may be prescribed after the expiry of the term of lease:

Provided that any person whose property is affected under Sub­ section (1­c), may file an application to the Commissioner claiming the property whose decision shall, subject to the decision of the Civil Court, be final.]

(2) In according such sanction, the Commissioner may declare it to be subject to such conditions and directions as he may deem necessary regarding the utilization of the amount raised by the transaction, the investment thereof and in the case of a mortgage, regarding the discharge of the same within a reasonable period,

(3) A copy of the order made by the Commissioner under this section shall be communicated to the State Government and to the trustee and shall be published in such manner as may be prescribed.

[(4) The trustee may, within thirty days from the date of receipt of a copy of the order and any person having interest may, within thirty days from the date of publication of the order, appeal to the State Government to modify the order or set it aside:

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Provided that appeals from the orders communicated or published prior to the date of commencement of the Orissa Hindu Religious Endowment (Amendment) Act, 1980 shall lie within a period of three months from the date of communication or, as the case may be, publication of the order or within a period of thirty days from the commencement of the said Act whichever period expires earlier.

(5) In any case where appeal has not been made to the State Government it appears to the State Government [that the alienation is not necessary or beneficial to the institution, or] that the consideration fixed in respect of the transfer by exchange, sale, mortgage or lease for a term exceeding five years of any immovable property is inadequate, they may, within ninety days from the date of the receipt of the order communicated to them under Sub­section (3) or the date of the publication of the order whichever date is later, call for the record of the case from the Commissioner and after giving an opportunity of hearing to the parties concerned, revise the order of the Commissioner :

Provided that in any case where the transfer has not been effected in pursuance of the order of the Commissioner under Sub­section (1), the State Government may exercise the aforesaid power even after the expiry of ninety days from the date of such order.

(6) The State Government may, by order, stay execution of the deed of transfer in respect of the immovable property which form the subject­matter of an appeal or revision till the disposal of the appeal, or as the case may be, the revision.

(7) The order of the Commissioner made under this section shall, subject to orders, if any, passed in an appeal or revision, be final.]”

26. Keeping in view the paramount object of good governance, if

any decision is taken to alienate the immovable trust property,

an inbuilt mechanism has been provided with a non obstante 18 clause having overriding effect contained in any law to restrict

the alienation of any immovably trust property belonging to, or

given or endowed for the purpose of, any religious institution,

unless sanctioned by the Commissioner as being necessary or

beneficial to the institution with a further restriction that no such

transfer shall be valid or operative unless it is so sanctioned.

27. After due compliance of the mandate of law as envisaged

under sub­section (1) of Section 19 of Act, 1951 while granting

sanction, the requirement as provided under sub­section (2) of

Section 19 has to be properly taken care of in reference to the

utilisation of funds and further mandating under sub­section(3)

that copy of the order of the Commissioner shall be

communicated to the State Government and to the trustee and

shall be published in such a manner as may be prescribed.

28. After the order of the Commissioner is communicated to the

State Government and published in the manner as may be

prescribed, the trustee or any person if interested may prefer an

appeal, if so desired, under sub­section (4) to the State

Government. At the same time, the State Government may

19 exercise its inherent power suo motu as provided under sub­

section (5) of the Act with the period of limitation provided therein

and Order of the Commissioner Endowments under sub­section

(6) shall be final subject to orders, if any, passed in appeal or

revision as referred to sub­section (7) of the Act.

29. In the instant case, the Commissioner Endowments taking

note of the affidavits filed by the respective parties and also the

fact that the appellant is the tenant and in possession over the

subject land since last 40 years paying bhag(share) to the deity

and has shown his inclination to purchase the subject land at a

price which the Commissioner Endowments may fix and took

note of the report of Inspector Endowments dated 27 th April,

2002 who has admitted in his report that the subject land is

lying barren and no income is derived to the institution and is

not in cultivable position. On the contrary, the institution used

to bear the expenditure towards payment of land revenue out of

the institution fund, which is an extra burden to the institution

and taking note of the market value as proposed by the Inspector

Endowments based on the sale statistics relating to the year

2000­2001 of Rs. 5.50 lakhs per acre and 4 years had rolled

20 thereafter, with due diligence, granted permission for sale of the

subject land with pragmatic approach by fixing the price of Rs.

10 lakhs per acre and the appellant being in possession of the

land was given the first choice to purchase the subject land

failing which it may be put to public auction under its order

dated 22nd February, 2005.

30. It reveals from the record that the Division Bench of the

High Court has initially proceeded on the basic principles that

deity being a perpetual minor and ultimately the State authority

is under an obligation to protect the interest of the minor and the

deity cannot be divested of any title or rights of immovable

property in violation of the statutory provisions leaving aside the

mandate of the Act, 1951. There could not be any two views

possible, so far it has to protect the rights of the deity is

concerned, the object is indeed laudable and based on public

policy which each one has to uphold but that is always to be

examined keeping in view the parameters as mandated under the

law.

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31. The plain reading of the judgment of the Division Bench of

the High Court shows that it has committed a manifest error in

not appreciating the concurrent finding noticed by the Single

Bench of the High Court and has proceeded on a tangent,

brushing aside the factual foundation on a price of hand offered

by respondent nos. 4 & 5 who were merely intervenors in the

proceedings standing on the fence having no stakes on their

shoulders, came forward just to nullify the registered sale deed

executed in favour of the appellant by adopting the indirect

method in making a public offer. To the contrary, if there was

any error in the decision making process adopted by the

respondents, the remedy available with the intervenors

respondent nos. 4 and 5 was to question the registered sale deed

in the appropriate proceedings available under the law which

certainly must have been appeared to be more cumbersome and

the easy walkover was to attack the procedure adopted by the

competent authority by making a stray offer with no liability to

discharge, such a procedure cannot be countenanced to nullify

the registered sale deed executed in favour of the appellant after

due compliance and mandated by law under Act, 1951.

22

32. It has not been controverted by the respondent nos. 4 and 5

that they themselves have purchased an adjoining piece of land

from private owners for a consideration of Rs. 6.50 lakhs per acre

on 27th December, 2006 in the given circumstances, the so called

lucrative offer made by them appears to be only to frustrate the

action of the respondent authority which was easily accessible to

them under the writ jurisdiction of the High Court under Article

226 & 227 of the Constitution of India.

33. In our considered view, the Division Bench of the High

Court has committed a manifest error of law and facts in setting

aside the concurrent finding noticed by the Single Judge of the

High Court in the impugned judgment which, in our considered

view, on this score is not legally sustainable in law.

34. Before parting, we would like to observe that the learned

counsel for the respondent nos. 4 and 5 has made an offer that

his client is ready to pay Rs. 75 lakhs per acre as on today but

his offer was for the total land of Ac. 4.255 decimals including

the subject land Ac. 2.019 decimals to which the sale deed has

been executed and registered in favour of the appellant has to be

23 parted with. This factual statement recorded by us is to be

noticed and may be taken into consideration by the respondents

while taking any future action in reference to the remaining land

Ac. 2.206 decimals in question, if any decision is being taken for

its alienation if so required, it goes without saying, after due

compliance, as mandated under the law.

35. The appeals succeed and are accordingly allowed. The

judgment of the Division Bench of the High Court dated 8 th April,

2009 is hereby set aside with the observations(supra). No costs.

36. Pending application(s), if any, stand disposed of.

……..…………………………………J. (N.V. RAMANA)

……..…………………………………J. (MOHAN M. SHANTANAGOUDAR)

………………………………………..J. (AJAY RASTOGI)

NEW DELHI SEPTEMBER 17, 2019

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