Case: K. ARJUN DAS Vs. COMMISSIONER OF ENDOWMENTS, ORISSA

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 22 nd 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 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 range of Rs. 5 to 5.50 lakh per acre and this has been assessed by the Officer after visit to the office of Sub-Registrar 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 (32-40).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  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 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 22 nd 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 sub-rule (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 22 nd February, 2005 was communicated to the State Government and also published in the manner prescribed in compliance of sub-section (3) of Section 19 of the Act, 1951.8. 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 sub-section (5) of Section 19 of the Act, 1951 within the statutory period of 90 days of the receipt of the order communicated under sub-section (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 sub-section (4) of Section 19 of the Act on 6 th 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 2 nd August, 2005 and 30 th August, 2005 respectively.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 22 nd February, 2005 and simultaneously the State Government also suo motu initiated the proceedings to revisit the procedure adopted by the Commissioner Endowments under sub-section (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 30 th August, 2005 respectively and took note of the report of the 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 30 th 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 & 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 ad-measuring 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 25 th February, 2008 with a liberty to go ahead for public auction of the remaining land ad-measuring 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 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 non-deposit, 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 ad-measuring Ac. 2.019 decimals dated 2 nd August, 2005 and 30 th 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.

Reasoning: 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 2000-2001 of Rs. 5.50 lakhs per acre and 4 years had rolled 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 22 nd 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.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, 1951.32. 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 27 th 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 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.