Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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
J U D G M E N T
Rastogi, J.
th
1. These appeals arise from the judgment dated 8 April, 2009
Signature Not Verified
Digitally signed by R
NATARAJAN
Date: 2019.09.17
16:32:57 IST
Reason:
passed by the Division Bench of Orissa High Court directing the
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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,
nd
Bhubaneshwar in its order dated 22 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
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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
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Inspector, Endowments submitted his report dated 27 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
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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
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2001, the Inspector Endowments submitted his report on 27
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
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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
nd
dated 22 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
nd
dated 22 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.
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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
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Section 19 of the Act on 6 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.
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20.19 lakhs on 2 August, 2005 and 30 August, 2005
respectively.
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10. Respondent no. 8(Chinmaya Mohapatra) being a person
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interested filed appeal before the State Government on 20
September, 2005 against the order of the Commissioner
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Endowments dated 22 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
nd th
been executed by a registered deed on 2 August, 2005 and 30
August, 2005 respectively and took note of the report of the
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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
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Endowments vide its order dated 30 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
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Government dated 30 May, 2006, no public auction for the
remaining Ac. 2.206 decimals of land has so far been held by the
authority as yet.
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13. That order of the State Government dated 30 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
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& 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
th
dated 25 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
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under the judgment impugned dated 8 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
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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
nd th
dated 2 August, 2005 and 30 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
th
by the judgment of Division Bench impugned dated 8 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
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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
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Inspector Endowments in his report dated 27 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
nd
as it reveals from its order dated 22 February, 2005. That
apart, there was a concealment on the part of respondent nos. 4
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& 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
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by registered sale deed dated 27 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
nd th
appellant dated 2 August, 2005 and 30 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
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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
th th
24 June, 2006 and 6 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
nd
the Commissioner Endowments, Orissa in its order dated 22
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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
nd
vide order dated 22 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
nd th
registered in his favour on 2 August, 2005 and 30 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
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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
th
note of the report of Inspector Endowments dated 27 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
nd
dated 22 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.
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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
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on 27 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
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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
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judgment of the Division Bench of the High Court dated 8 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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