HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.663 of 2003 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- Deben Sethi, S/o. late Balunki Sethi, At: Kumbharapada, P.O./P.S./Dist: Puri and others … Petitioners -Versus- State of Orissa and others … Opp. Parties For Petitioners : M/s. K.B. Kar, M.B. Kar & B.K. Nayak For Opp. Parties : Government Advocate (For O.Ps. 1, 3, 4 & 5) Mr. B.N. Rath, J.N. Rath, S.K. Jethy, P.S. Samantaray, S.B. Mohanty, P.K. Behera & S.K. Mishra (For O.P. No.2) ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment: 20.10.2011 B.N. Mahapatra, J. This writ petition has been filed with a prayer to quash the order dated 29.09.2000 (Annexure-1) passed by opposite party No.2- Administrator, Jagannath Temple, Puri in Land Sale Case No.622 of 2000 by which petitioners have been directed to pay a sum of Rs.72,000/- towards consideration money of the land described in the schedule appended to the said order and also to quash the order dated 22.04.2002 passed in Appeal No.6 of 2000 on the ground that the said orders are not sustainable in law. The further prayer of the petitioner is to issue a writ in the nature of mandamus directing the Administrator, Jagannath Temple, Puri to execute sale deed in favour of the petitioner at the rate of Rs.1,00,000/- (one lakh) per acre as purportedly at that rate better lands were sold to other persons in Puri town. 2. Petitioners’ case in a nutshell is that opposite party No.2 issued a notice to the petitioners stating that Jagannath Temple, Puri decided to sell the property in question to the petitioners. In response to the said notice, the petitioners filed an application before the Administrator of Jagannath Temple, Puri expressing their willingness to purchase the aforesaid land. The said application was registered as Land Sale Case No.622 of 2000. Public objections were invited and an Amin namely, Suresh Chandra Mohanty was directed to submit report. Another person, namely, Sri R.N. Das, O.,Pra. Se. Sa, Pra was directed to measure the land. Further case of the petitioners is that the order dated 29.09.2000 passed in the Land Sale Case No.622 of 2000 shows that the petitioners have occupied Ac 0.018 decimals of land and have constructed a house thereon which is treated as Puri Municipality Holding No.257. The settlement record shows that they are in possession of the land in question along with the lands purchased by their father Balunki Sethi and the land is in a compact patch having Sabak Plot No.310 and Sabak Khata No.18. They have also their residential house over the said land and are paying holding tax and water tax since long. Grievance of the 2 petitioners is that though in the same locality the Administrator of Jagannath Temple, Puri has sold land at the rate of Rs.1,000/- per decimal which is adjacent to Grand Road, Puri, opposite party No.2 illegally and arbitrarily has directed the petitioners to pay Rs.72,000/- towards the sale consideration money in respect of the disputed land measuring Ac 0.018 decimals. Opposite party No.2 has executed the sale deed in favour of one Surendranath Sahoo fixing the consideration money at the rate of Rs.1,000/- per decimal. The petitioners have enclosed copy of the sale deed executed in favour of Surendranath Sahoo as Annexure-2 to the writ petition. In the writ petition, the petitioners have also referred to numbers and dates of some other sale deeds. According to the petitioners, the said rate has been fixed by the Law Department in its letter No.15950 dated 12.10.1998. The petitioners are ready and willing to purchase the occupied land at the rate of Rs.1,000/- per decimal. 3. Being aggrieved by the order dated 29.09.2000 passed by the Administrator, Jagannath Temple, Puri in Land Sale Case No.622 of 2000, the petitioners filed an appeal bearing Appeal Case No.6 of 2000 before the Collector and Chairman of Appeal Sub-Committee, Puri, who by his order dated 22.04.2002 did not admit the appeal on the ground that the subject matter does not come under the ambit of consideration of the Sub- Committee of the Jagannath Temple, Puri and the Temple Sub-Committee lacks jurisdiction to adjudicate such dispute. Hence, the present writ petition has been filed. 3 4. Mr. K.B. Kar, learned counsel appearing on behalf of the petitioners submitted that since the Law Department vide Letter No.15950 dated 12.10.1998 has fixed the rate of the land @ Rs. 1,000/- per decimal, i.e., Rs.1,00,000/- per acre, opposite party No.2 is wholly unjustified in asking the petitioners to pay Rs.72,000/- towards the value of Ac 0.018 decimals of land. Therefore, they have prayed to allow the writ petition by accepting prayers made. 5. Per contra, Mr. B.N. Rath, learned counsel appearing on behalf of opposite party No.2 submitted that the writ petition is not maintainable as disputed questions of fact are involved in the present writ petition. No final order was passed in Land Sale Case No.622 of 2000, which was disposed of on 29.09.2000. According to Mr.Rath, in the year 1998 the land committee recommended to dispose of the landed properties of Lord Jagannath situated at Puri Town covering an area Ac 88.372 decimals at the rate of Rs.1,00,000/- per acre to persons, who were possessing the land with permanent structure since long. Accordingly, the Temple Administration vide Letter No.7955 dated 10.09.1998 requested the Government of Orissa to accord permission for sale of these lands and approve the rate fixed by the Land Committee. Pursuant to said letter, the Law Department, Government of Orissa vide letter No.15950 dated 12.10.1998 approved the recommendation of the Land Committee with a specific direction that there should be different considerations in the case of sale of vacant lands and in the case of lands covered by constructions. The consideration amount of 4 Rs.72,000/- as fixed in the said land case for sale of an area measuring Ac 0.018 decimals out of Ac 0.038 decimals of Plot No.794 is not illegal and arbitrary. Mr. Rath submitted that in Law Department letter No.15950 dated 12.10.1998, the rate of the land per acre was fixed at Rs.1,00,000/- in respect of the persons, who were occupying the lands of Lord Jagannath by raising construction since long. The property in question involved in the writ petition is a vacant piece of land and was not in possession of the petitioners. So petitioners are not entitled to purchase the land @ Rs.1.00 lakh per acre. The valuation of the land fixed by opposite party No.1 is just and proper which is according to the market price prevailing then. It is falsely alleged that the notice was issued by opposite party No.2 to the petitioners to sell the aforesaid land to them and in pursuance of such notice they filed application to purchase the said land. No individual notice was issued to the petitioners prior to filing of application by them to purchase the land in question. The disputed land measuring Ac. 0.018 decimals is a vacant piece of land having no construction over it and the said land is not a part of the Puri Municipality Holding No.257. Referring to order passed in the settlement appeal and the correct draft R.O.R. annexed as Annexures-B/ 2 and C/2 respectively to the counter affidavit filed by opposite party No.2, Mr.Rath submitted that the petitioners had managed to record their forcible possession over the entire area measuring Ac. 0.038 decimals of Hal Plot No.794 in the remark column of the draft R.O.R. but their names have been deleted from the draft R.O.R. and Plot No.794 has been recorded in the name 5 of the Temple Managing Committee in the order passed in Settlement Appeal No.10323 of 1995. 6. Learned Government Advocate justifying the action of opposite parties prayed for dismissal of the writ petition. 7. According to Mr.Rath, learned counsel appearing for opposite party No.2, the petitioners along with their brother Kiran Kumar Sethi filed an application on 16.06.1998 to purchase an area of Ac 0.080 decimals (Ac.0.060 decimals of Hal Plot No.795 decimals and Ac.0.020 decimals out of Ac.0.38 decimals from Plot No.794) which they were possessing on the basis of sale deed executed in favour of their father bearing Sale Deed No.3897 dated 02.08.1929. The said application was registered as Land Sale Case No.621 of 2000. The present petitioners also filed another application on the same day i.e. on 16.06.1998 to purchase the balance area Ac 0.018 decimals of land of Plot No.794 which was lying vacant on the plea that they were possessing that area along with their purchased area. The said application was registered as Land Sale Case No. 622 of 2000. During enquiry in both the cases and from the documents filed by the petitioners, it was found that they were in possession over Plot No.795, and partly on Plot No.794 covering Ac.0.020 decimals. The rest area of plot No.794 measuring Ac 0.018 decimals land was found to be lying vacant without being surrounded by fence. As the petitioners were found to be in possession having their residential house over an area Ac. 0.080 decimals covering Plot No.795 measuring an area Ac 0.060 decimals and partly on 6 Plot No.794 covering an area Ac. 0.020 decimals, the Land Sale Case No.622 of 2000 was disposed of with a direction to the petitioners to deposit only an amount of Rs.28,000/- towards consideration amount. But as the land measuring an area Ac 0.018 decimals of Plot No.794 was lying vacant and the petitioners could not show any document regarding their possession, the valuation of the aforesaid land was fixed at Rs.72,000/- which was the market price prevailing then. It is further stated by Mr. Rath that petitioner No.1-Deban Sethi, who is an ex-defence personnel and was looking after the land case No.622 of 2000 on behalf of the petitioners agreed to purchase the land in question at Rs.72,000/-. 8. On rival contentions urged on behalf of the parties, the following questions fall for consideration by this Court: (i) Whether on the facts and circumstances of the case any kind of right over the property belonging to Lord Jagannath accrues and/or has accrued in favour of the petitioners? (ii) Whether the petitioners have any legal right which has been infringed by the opposite parties and the same can be enforced through the writ Court? (iii) What order? 9. Question No.(i) is as to whether any kind of right over the property belonging to Lord Jagannath accrues and/or has accrued in favour of the petitioners. 7 Petitioners’ case is that order dated 29.09.2000 passed in Land Sale Case No.622 of 2000 shows that the petitioners have occupied the land measuring area Ac 0.018 decimals and have constructed their houses over the said land which is treated as Puri Municipality Holding No.257. The settlement record shows that they are in possession of the lands along with the lands purchased by their father Balunki Sethi and the land is in a compact area having Sabak Plot No.310 and Sabak Khata No.18. They are paying holding tax and water tax since long. 10. In the counter affidavit, traversing the averments made in paragraphs 7 and 8, opposite parties stated that those are travesty of truth. The disputed land measuring Ac 0.018 decimals is a vacant piece of land having no construction over it and the said land is not a part of Puri Municipality Holding No.257. As regards recording of forcible possession in settlement record, it was stated that the petitioners had managed to record their forcible possession over the entire area measuring Ac 0.038 decimals of Hal Plot No.794 in the remark column of the draft R.O.R. but their names have been deleted from the draft R.O.R. and Plot No.794 has been recorded in the name of the Temple Managing Committee in the order passed in Settlement Appeal No.10323 of 1995. The order passed in the said settlement appeal and the correct draft R.O.R. are annexed as Annexures-B/2 and C/2 respectively to the counter affidavit filed by opposite party No.2. No rejoinder has been filed by the petitioners denying the aforesaid averments. Moreover, the orders dated 12.05.2000 and 8 29.09.2000 passed in Land Sale Case No.622 of 2000 reveal that direction was given to one Suresh Chandra Mohanty, who was an Amin, to conduct spot enquiry and after verification of record file a detailed report regarding possession of the land in question. Similarly, a direction was also given to Sri R.N. Das, O.,Pra. Se. Sa, Pra to make a physical visit to the disputed land in question. As per the report submitted by the Amin Sri S.C. Mohanty, on enquiry it was found that the land in question pertaining to plot No.794 was lying vacant and the petitioners could not show any document regarding their possession. 11. It is not in dispute that the Land Committee has taken a decision and recommended to dispose of the landed properties of Lord Jagannath, situated in Puri town covering an area of Ac 88.372 decimals @ Rs.1,00,000/- per acre to persons, who were possessing the land with permanent structure since long and accordingly, the Temple Administration requested the Government of Orissa to accord permission for sale of those lands. The Government of Orissa vide letter No.15950 dated 12.10.1998 approved the recommendation of the Land Committee as provided under Rule 16(2) of the Jagannath Temple Rules with a specific direction that there should be different consideration in case of sale of vacant lands and in case of lands occupied by raising constructions. The petitioners’ possession over the land in question is disputed. The enquiry report reveals that Ac 0.018 decimals of land was found to be lying vacant without being surrounded by fence. The petitioners were found to be in possession having 9 their residential houses over an area of Ac 0.080 decimals only covering Plot No.795 measuring an area of Ac 0.060 decimals and partly on Plot No.794 covering an area Ac 0.020 decimals of land. The petitioners also could not show any document regarding their possession over Ac.0.018 decimals which on enquiry was found to be open and vacant land. Therefore, no right, title and interest accrue or have accrued in favour of petitioners in respect of the land in question belonging to Lord Jagannath. Needless to say that any decision and permission to sell the property of Lord Jagannath do not create any right, title and interest in favour of any person including the petitioners in respect of the land/property belonging to Lord Jagannath. Discretion always vests with the Administration of Jagannath Temple either to sell or not to sell any property belonging to Lord Jagannath for which permission has been obtained from the State Government. 12. There can be no dispute to the settled legal proposition that the land belonging to the deity cannot be subject to alienation in violation of statutory requirement. (See Temple of Thakurji vs. State of Rajasthan, AIR 1998 Raj. 85). Therefore, right, title and interest over the land/property belonging to Lord Jagannath always vests with the deity. 13. There can also be no dispute to the settled legal proposition that the deity is a juristic perpetual minor/and disabled person, and the property belonging to the minor and a person incapable to cultivate the 10 holding by reason of physical disability or infirmity requires protection. A deity is covered under both the classes. The manager/trustee/pujari and ultimately the State authorities are under obligation to protect the interest of such a minor or physically disabled person. The deity cannot be divested of any title or rights of immovable property in violation of the statutory provisions. The object is laudable and based on public policy. In order to protect its interest even a worshiper having no interest in the property may approach the authority or Court. 14. As a general proposition of law, if any person claims to have acquired any kind of right in the property belonging to the deity, the transaction is required to be ignored being illegal and the deity becomes entitled to recover the possession as well as the right, title and interest in the property. 15. Question No.(ii) is as to whether the petitioners have any legal right which has been infringed by the opposite parties and the same can be enforced through the writ Court. 16. Law is well settled that only legally protected right can be enforced through Court. The existence of such right is the condition precedent to invoke the writ jurisdiction. 17. The Hon’ble Supreme Court in State of Orissa-v-Madan Gopal Rungta, AIR 1952 SC 12, held :- “The Issuing of writs or directions by the High Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental 11 Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Art.226 have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the exercise of jurisdiction of the Court under this Article”. 18. A Constitution Bench of the Hon’ble Supreme Court in Calcutta Gas Company (Proprietary) Ltd. Vs. State of West Bengal & Ors., AIR 1962 SC 1044, held as under:- “The article in terms does not, describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. In State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12, this Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the court under Article 226 of the Constitution. In Chiranjit Lal Chowdhuri v. Union of India, AIR 1951 SC 41, it has been held by this Court that the legal right that can be enforced….must ordinarily be the right of the petitioner himself who complains of infarction of such right and approaches the court for relief….The question, therefore, is whether in the present case the petitioner has a legal right and whether it has been infringed by the contesting respondents”. 19. The Hon’ble Supreme Court in the case of Jasbhai Motibhai Desasi-v-Roshan Kumar, Haji Bashir Ahmed & Ors., AIR 1976 SC 578, held:- “In order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an “aggrieved person”. The expression “aggrieved person” denotes an elastic, and, to an extent, an elusive concept. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which 12 contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner’s interest, and the nature and extent of the prejudice or injury suffered by him.” 20. In Milk Producers Association, Orissa & Ors. Vs. State of Orissa & Ors.,(2006) 3 SCC 229 while dealing with same situation, the Apex Court repelled the case of promissory estoppel given to similarly situated persons and held that the question of promissory estoppel in such a case does not arise. The Apex Court held that the rank trespassers cannot claim the right of rehabilitation. The Court observed as under: “There does not exist any legal concept which confers a legal right upon an encroacher to be rehabilitated. The matter may be different where the State comes out with a policy decision which meets the constitutional scheme as envisaged under Article 162 of the Constitution. In the instant case, we have noticed that the appellants have failed to show existence of any such scheme, which can be said to be irretrievable in nature. In view of the 2003 Act, even the doctrine of promissory estoppel will have no application.” 21. Needless to say that writ is issued only to advance cause of justice. The writ Court cannot thwart the cause of justice. An aggrieved person who suffered legal injury can only approach the writ Court for equitable relief and the Court can only enforce a legal right. 22. If the instant case is examined in the light of the aforesaid legal proposition, we have no hesitation to hold that for the reasons stated here-in-above petitioners have no legally protected or enforceable right which can be enforced through this writ court. 13 23. This matter can be looked at from another angle. Law is well settled that no man can take advantage of his own wrong. This concept is also explained by the legal maxim ‘Nullus commodum capere potest de injuria sua propria”. No man can take advantage of his own wrong is one of the salient tenets of equity. [See Ashok Kapil vs. Sana Ullah & Others, (1996) 6 SCC 342; and T. Srinivasan Vs. T. Varalakshmi (Mrs.), (1998) 3 SCC 112]. Hence, the petitioners cannot secure the assistance of this court to take the benefit of their own wrong. 24. Undisputedly, the land in question belongs to Lord Jagannath. We have already held that no right, title and interest accrue or have accrued in favour of petitioners in respect of the land in question belonging to Lord Jagannath. 25. In the counter affidavit, it is stated that petitioner No.1-Deben Sethi, who is an ex-defence personnel and was looking after the Land Sale Case No.622 of 2000 on behalf of the petitioners, agreed to purchase the land in question at Rs.72,000/- and signed the order sheet of Land Sale Case No.622 of 2000 on 29.09.2000. He also filed an application on 30.10.2000 before opposite party praying therein to allow him six months time to deposit the consideration money. Subsequently, on 13.10.2000 he filed another application making a prayer to allow him to deposit the money partly for preparation of sale deed. The signing of the order sheet by petitioner No.1 and his subsequent applications clearly indicate that the petitioners were willing to purchase the case land at Rs.72,000/-. But on 14 29.10.2000 petitioner No.2-Prasant Kumar Sethi filed an application before opposite party requesting to refix the valuation of the land @ Rs.1,00,000/- per acre. The said opposite party rejected his prayer and directed the petitioners vide notice No.9581 dated 25.10.2000 to deposit an amount of Rs.72,000/- towards cost of the land on or before 10.11.2000. The petitioners instead of depositing the said amount within the time fixed have filed the writ application on false and frivolous grounds only to grab the property of Lord Jagannath at a throw away price. No rejoinder has been filed denying the averments made in the counter. 26. In the facts situation, it is open for opposite party No.2- Administrator, Jagannath Temple, Puri to sell the property in question to the petitioners for a consideration of Rs.72,000/- along with interest @ 9% per annum from 29.09.2000 till the date of payment. If the petitioners are not willing to purchase the land in question, the opposite parties are free to sell the same to any other person (s) for a consideration as per market value or they may retain the properties with them. 27. In the result, the writ petition is dismissed with the aforesaid observations and directions. ………………………….. B.N. Mahapatra, J. V. Gopala Gowda, C.J. I agree. ……………………….. Chief Justice Orissa High Court, Cuttack 15 The 20th October, 2011/skj/ss/ssd 16