SATYA SUNDAR MAHARATHY vs COMMISSIONER OF ENDOWMENTS, ODISHA
- Court
- Odisha High Court
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 18024 OF 2025
(An application under Articles 226 & 227 of the Constitution of India)
*
Sri Satya Sundar Maharathy
& others
…… Petitioners
-Versus-
1. Commissioner of Endowments, Odisha,
Bhubaneswar, Khordha.
2. Inspector of Endowments,
Khordha, I/C-Banpur, Dist:- Khordha
.….. Opp. Parties
Advocates appeared :
For Petitioners : Mr, Manmaya Kumar Dash,
Advocate
For Opp. Parties : Ms. Pratyusha Naidu, Advocate,
(For Commissioner of Endowments)
CORAM :
MR. JUSTICE K.R. MOHAPATRA
MR. JUSTICE SANJAY KUMAR MISHRA
----------------------------------------------------
Heard and disposed of on 11.05.2026
----------------------------------------------------
JUDGMENT
By the Bench;
W.P.(C) No.18024 OF 2025
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1. This matter is taken up through hybrid mode.
2. The Petitioners, in this writ petition, seek to assail the
th
judgment dated 28 March, 2025 (Annexure-4) passed by learned
Commissioner of Endowments Odisha, Bhubaneswar in OA
No.207 of 2023, whereby an application filed by the Petitioners
under Section 19-A of the Odisha Hindu Religious Endowments
Act, 1951 (for brevity, ‘the Act’) for grant of ‘No Objection
Certificate’ (NOC) in favour of the Petitioners to alienate the
property of the Deity Sri Raghunath Jew, Bije At-Rameswar, under
Jankia Police Station in the district of Khordha, (for brevity, ‘the
Deity’) was rejected.
3. The admitted facts, as revealed from the record, are that,
the Deity is a private religious institution. The grandfather of the
Petitioners, namely, Rama Chandra Jayasingh Maharathi had
endowed certain immovable properties to the Deity for its
Sevapuja and Nitikanti. Initially, the Deity was being worshipped
in the residential house of the Petitioners. Subsequently, it was
shifted to a place situated about 100 meters away from their
residential house and was installed in a temple. A Brahmin Pujaka
has been engaged to perform the Sevapuja of the Deity and he has
been allotted with some landed properties by the family of the
Petitioners towards his remuneration. The Deity has not been
indexed and is being managed by the Petitioners’ family.
3.1. The scheduled immovable property, which is intended to
be alienated, yields no income to the Deity. Further, the temple of
the Deity is in a dilapidated condition and a boundary wall is
W.P.(C) No.18024 OF 2025
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required to be constructed around the temple for protection and
safety of the temple. Hence, in order to meet such expenses, the
scheduled property was intended to be alienated.
3.2. Accordingly, an application under Section 19-A of the Act
was filed before the learned Commissioner of Endowments, which
was registered as O.A. No.207 of 2023.
3.3. Upon receipt of the application under Section 19-A of the
Act, the learned Commissioner of Endowments called for a report
from the Inspector of Endowments. The Inspector of Endowments
submitted his report on 03.01.2024 stating inter alia that the
bijesthali of the temple is over Plot No.80/139 at village
Rameswar under Tangi Tahasil in the District of Khordha. The
temple is situated on the bank of river Malaguni, near a barrage.
The public has free access to the temple for darshan and offering
bhoga . He also indicated in the report that the Deity has not been
indexed and that the temple is more than 100 years old. Apart
from the principal idols of Lord Shri Rama, Lord Shri Laxman
and Maa Sita, brass idols like Laxminarayan, Radhakrushna and
Hanuman etc. are being worshipped in the temple.
3.4. It is also stated that though the public has access to the
temple for darshan and offering bhoga to the Deity, the
management and day-to-day affairs of the said Deity are being
looked after by the Petitioners’ family only, who are the
Marfatdars . The entire day-to-day expenses of the Deity is being
borne by the Marfatdars . The Marfatdars intended to alienate
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some immovable properties of the Deity to meet the expenses for
construction work and Sevapuja of the Deity.
3.5. After due notice on the application under Section 19-A of
the Act, no objection was received by the Commissioner of
Endowments. The Petitioners examined two witnesses on their
behalf, who reiterated the contents of the application under
Section 19-A of the Act.
3.6. Learned Commissioner of Endowments, expressing doubt
with regard to the requirement of the Deity for alienation of the
immovable property and observing that since the public has access
to the temple it is prima facie public in nature, rejected the
application vide order under Annexure-4. It was also observed in
the impugned order that the female legal heirs of Petitioners’
grandfather were not impleaded as parties to the petition under
Section 19-A of the Act. Thus, he held that maintainability of the
application under Section 19-A of the Act was therefore doubtful.
Accordingly, he rejected the petition under Section 19-A of the
Act.
4. Mr. Dash, learned Counsel for the Petitioners submits that
only because the public has access for darshan of the Deity, it
does not become a public deity. He relied upon the case of
Radhakanta Deb and others vs. Commissioner of Hindu
Religious Endowments, Orissa; AIR 1981 SC 798 in which, the
Hon’ble Supreme Court held as under:-
“ 8. Some of the circumstances from which a public
endowment can be inferred may be whether an
endowment is made by a person who has no issue
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and who after installing the deity entrusts the
management to members of the public or strangers
which is a clear proof of the intention to dedicate the
temple to public and not to the members of the
family. Where, however, it is proved that the
intention of the testator or the founder was to
dedicate the temple merely for the benefit of the
members of the family or their descendants, the
endowment would be of a private nature.
xx xx xx
12. In the case of Bihar State Board Religious Trust,
Patna v. Mahant Sri Biseshwar Das [(1971) 1 SCC
574: AIR 1971 SC 2057; (1971) 3 SCR 680], this
Court laid down some important tests to determine
the nature of the endowment. In this connection, the
following observations need specific mention:
“Therefore, evidence that sadhus
and other persons visiting the temple are
given food and shelter is not by itself
indicative of the temple being a public
temple or its properties being subject to a
public trust.
Evidence that the Mahants used
to celebrate Hindu festivals when
members of the public used to attend the
temple and give offerings and that the
public were admitted to the temple
for darshan and worship is also not
indicative of the temple being one for the
benefit of the public.... The fact that
members of the public used to come to
the temple without any hindrance also
does not necessarily mean that the temple
is a public temple, for members of the
public do attend private temples… Yet,
the Privy Council held that the general
effect of the evidence was that the family
had treated the temple as family property
and the mere fact of the members of the
public having come to the temple and
having made offerings and
the mela having been held which gave
popularity to the temple and increased its
esteem in the eyes of the public and the
fact that they were never turned away
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were not enough to hold the temple and
the properties as a public trust.
*
Thus, the mere fact of the public having
been freely admitted to that temple
cannot mean that courts should readily
infer therefrom dedication to the public.
The value of such public user as
evidence of dedication depends on the
circumstances which give strength to
the inference that the user was as of
right.”
15. Thus, on a conspectus of the authorities mentioned
above, the following tests may be laid down as
providing sufficient guide-lines to determine on the facts
of each case whether an endowment is of a private or of
a public nature:
(1) Where the origin of the endowment
cannot be ascertained, the question
whether the user of the temple by
members of the public is as of right;
(2) The fact that the control and
management vests either in a large body
of persons or in the members of the
public and the founder does not retain
any control over the management. Allied
to this may be a circumstance where the
evidence shows that there is provision
for a scheme to be framed by associating
the members of the public at large;
(3) Where, however, a document is
available to prove the nature and origin
of the endowment and the recitals of the
document show that the control and
management of the temple is retained
with the founder or his descendants, and
that extensive properties are dedicated
for the purpose of the maintenance of the
temple belonging to the founder himself,
this will be a conclusive proof to show
that the endowment was of a private
nature;
(4) Where the evidence shows that the
founder of the endowment did not make
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any stipulation for offerings or
contributions to be made by members of
the public to the temple, this would be an
important intrinsic circumstance to
indicate the private nature of the
endowment.”
4.1. It is his submission that since the Inspector of
Endowments has categorically held that the management of the
prima
temple is with the Petitioners’ family, the Deity cannot
facie be held to be a public religious institution. Further, the Deity
has not yet been indexed, as observed by learned Commissioner of
Endowments. Thus, the finding of learned Commissioner of
Endowments that the Deity prima facie appears to be a public
religious institution is not sustainable.
4.2. He further relied upon the case of Tamala Das vs. State of
Odisha and Others , reported in 2023 (II) CLR 310, wherein it has
been held in paragraph 11 as under: -
“11. Our interpretation of sub-rule (3) in rule 4A is that
prima facie view can be taken by the Commissioner on
receiving objection. The view is necessitated by existence of
objection. It follows that the rule contemplates, where there
is no objection, the exercise of taking a prima facie view,
provided for by sub-rule (3), becomes unnecessary. In other
words, on receiving the objection and after reasonable
opportunity of hearing to the parties, the Commissioner can
be prima facie satisfied that the institution in question is not
a public religious institution, for which no sanction under
section 19 of the Act is required. He shall then grant ‘No
Objection’ certificate in prescribed form. The provision in
sub-rule (3) indicates three factors. The application is by a
religious institution claiming to be a private one. Receipt of
objection and reasonable opportunity of hearing to the
parties given. The application was by petitioner, purchaser
of the deity’s land, not a religious institution claiming to be a
private one. The second two factors are in conjunction.
Hence, our view that in absence of objection, the exercise
provided for by sub-rule (3) is not necessary. More so
because, sub-rule (3) is worded in enabling the
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Commissioner to grant ‘No Objection’ certificate in spite of
objection filed.”
4.3. He, therefore, submits that when no objection was
received by the learned Commissioner of Endowments on the
application filed by the Petitioners under Section 19-A of the Act,
the Commissioner should have granted the NOC in the prescribed
form in favour of the religious institution to alienate the
properties. Further learned Commissioner of Endowments has not
discussed whether the immovable property sought to be alienated
yields any income to the Deity or not. He, therefore, prays for
setting aside the impugned order under Annexure-4 and remitting
the matter to the learned Commissioner of Endowments for fresh
adjudication of the petition under Section 19-A of the Act.
5. Ms. Naidu, learned Counsel for the Commissioner of
Endowments, refuting such submissions made by learned Counsel
for the Petitioners, submits that the entire immovable property of
the Deity is intended to be alienated by the Petitioners, as would
reveal from the application under Section 19-A of the Act and
copy of the Record of Right appended to the said application. It is
not stated in the petition as to how the Deity will be managed if
the entire immovable property of the Deity is alienated. She
further relied upon the case of Sri Antaryami Dash and others vs.
State of Odisha and Another , reported in 2016 (II) ILR-CUT-
1021, wherein this Court has dealt in detail the manner in which
an application under Section 19-A of the Act is to be adjudicated.
It is her submission that the necessity for alienation of the
immovable property of the private Deity as well as utilisation of
the sale proceeds for benefit of the Deity, are primary ingredients
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to be satisfied by the petitioners to get NOC under Section 19-A
of the Act.
5.1. The petition under Section 19-A of the Act is
conspicuously silent with regard to utilisation of the sale proceeds
and the necessity for alienation of the immovable property of the
Deity.
5.2. It is further submitted by Ms. Naidu, learned Counsel for
the Commissioner of Endowments that the burden of proof is
always on the Petitioners, who make an application under Section
19-A of the Act to get NOC, even if no objection is received from
the public. She further submits that the Record of Rights enclosed
to the petition under Section 19-A of the Act, indicates that the
entire property of the Deity is intended to be alienated after
receiving the NOC. There is nothing on record to show that the
Deity has other properties for its management. Hence, learned
Commissioner of Endowments has committed no error in
dismissing the application under Section 19-A of the Act. She,
therefore, prays for dismissal of the writ petition.
6. Heard learned Counsel for the parties, perused the
materials on record as and as well as the case laws relied upon by
learned counsel for the respective parties.
7. In the application under Section 19-A of the Act, the
Petitioners have given the details of the properties proposed to be
alienated for the benefit of the Deity, i.e., for construction of the
temple and to meet the expenses of Sevapuja and Nitikanti of the
Deity. The report of the Inspector is silent about the details of the
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properties of the Deity. The report of the Inspector also does not
reveal as to whether the immovable property sought to be
alienated yields any income to the Deity or not. Though the report
of the Inspector reveals that the temple is about 100 years old, but
the condition of the temple is also not stated in his report. There is
also no material to show as to how the sale proceeds of the Deity
are to be utilised for its benefit.
8. As held in Gopal Chandra Ramanuj Das V. State of
Odisha & others; reported in 2021 (II) OLR 947, in W.P.(C)
No.14407 of 2019 decided on 04.02.2020 ( Sri Laxminarayan
Thakur V. Commissioner of Endowments, Odisha) and in
Judgment dated 22.01.2024 passed in WP(C) No.15022 & 15020
of 2022 ( Amaresh Das Vs. State of Orissa & others), that while
granting an application under Section 19-A of the Act and issuing
NOC for alienation of the property, no condition can be imposed
as to how the sale proceeds is to be spent by the marfatdars of the
Deity unlike an application under Section 19 of the Act in respect
of a public religious institution. But, at the time of adjudication of
the petition under Section 19-A of the Act, learned Commissioner
is required record its satisfaction that the sale proceeds of the land
sought to be alienated are to be utilised for the benefit of the
Deity, as observed in the case of Sri Antaryami Das (supra).
9. Further, access of public for darshan and offering bhog to
the Deity is not sacrosanct to treat it as a public religious
institution. When the management of the temple is with the
Marfatdars only and the Sevapuja as well as Nitikanti of the
Deity are being performed by them, the Deity is deemed to be a
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private one unless it is proved otherwise in accordance with law in
appropriate proceeding. Rule 4-A of the Odisha Hindu Religious
Endowments Rules, 1959 makes it clear that while making
enquiry to grant NOC, the Commissioner of Endowments should
be prima facie satisfied that the Deity is not a public religious
institution. In the instant case, admittedly, the management of the
Deity is with the Petitioners and it has not yet been indexed.
10. Thus, it prima facie appears that the Deity is a private
religious institution and an application under Section 19-A of the
Act is maintainable. However, at the same time, the learned
Commissioner ought to have made an endeavour to ascertain
whether the scheduled properties were required to be alienated for
the benefit of the Deity and whether the interests of the Deity is
protected by alienation of the said property.
11. Learned Commissioner of Endowments failed to deal with
these material aspects of the matter while adjudicating the petition
under Section 19-A of the Act. Hence, the impugned order under
Annexure-4 is not sustainable and is accordingly set aside.
12. Consequently, the matter is remitted to learned
Commissioner of Endowments for fresh adjudication of petition
under Section 19-A of the Act, if necessary, by calling for a
further report from the Inspector of Endowments and by receiving
evidence from the parties. The Petitioners may also be permitted
to amend the pleadings of the petition under Section 19-A of the
Act, if so advised.
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13. With the aforesaid observations and directions, the writ
petition is allowed to the extent stated above. In the facts and
circumstances of the case, there shall be no order as to costs.
Urgent certified copy shall be granted as per Rules.
(K.R. Mohapatra)
Judge
(S.K. Mishra)
Judge
Orissa High Court, Cuttack,
Dated 11.05.2026/Mona
Signature Not Verified
Digitally Signed
Signed by: MONALISA SWAIN
Reason: Authentication
Location: High Court of Orissa
Date: 13-May-2026 15:55:30
W.P.(C) No.18024 OF 2025
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