Orissa High Court
Radha Krishna Lalita Temple vs In W.P.(C) No.25751 Of 202 on 22 April, 2024
Bench: D.Dash, G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.25751 of 2020 : (A)
AND
W.P.(C) No.17479 of 2021 : (B)
A.F.R. In the matter of applications under Articles 226 & 227 of the
Constitution of India, 1950.
----
In W.P.(C) No.25751 of 2020
1. Pabitra Mohan Panigrahy;
2. Sanjib Kumar Sabat;
3. Bhabagrahi Palo;
4. Nilachal Barad;
5. Pradeep Kumar Choudhury; and
6. Sudarsan Sabatm In W.P.(C) No.17479 of 2021 Radha Krishna Lalita Temple, through its Non-Hereditary Trust Board, represented .... Petitioners by Trustee Pabitra Mohan Panigrahy
-versus-
In W.P.(C) No.25751 of 2020
1. The Minister, Law, Odisha;
2. State of Odisha, represented through its Principal Secretary to Government, Law Department;
3. Commissioner of Endowments, Odisha;
4. Collector, Ganjam;
5. Additional Assistant Commissioner of Endowments, Berhampur;
6. Sub-Registrar, Hinjlicut;
7. Radha Krishna Lalita Temple, represented by its Interim Trustee Sri N. Sahoo and
8. Sri Lalit Mohan Mangaraj Page 1 of 49 In W.P.(C) No.17479 of 2021
1. State of Odisha, represented by Law Secretary, Department of Law;
2. Commissioner of Endowments; and
3. Additional Asst. Commissioner of .... Opp. Parties Endowments, Berhampur Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Petitioners - Dr.Kedar Nath Tripathy &
S. Mohapatra
(Advocates in both W.Ps.)
For Opp. Parties - Mr.S.N. Das,
(ASC for O.Ps.1, 2, 4 & 6 in
W.P.(C) No.25751/2020 and for
O.P.1 in W.P.(C) No.17479/2021).
Miss.Pratyusha Naidu
(Advocate for O.Ps.3 & 5 in
W.P.(C) No.25751/2020 and for
O.Ps.2 & 3 in W.P.(C)
No.17479/2021).
Mr.S.K. Choudhury,
(Advocate for O.P.7 in W.P.(C)
No.25751/2020)
Mr.T.K. Mishra
(Advocate for O.P.8 in W.P.(C)
No.25751/2020)
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE G. SATAPATHY
Date of Judgment: 22.04.2024
Dash,J. One Reetanjali Sahu, as the original Petitioner, had filed this writ petition as at (A) invoking the jurisdiction of this Court Page 2 of 49 under Articles 226 & 227 of the Constitution of India with a prayer to quash the order dated 01.03.2019 passed by the Government in the Department of Law in Appeal No.2 of 2019 in exercise of the power under sub-section 4 of section 19 of the Odisha Hindu Religious Endowments Act, 1951 (hereinafter, referred to as O.H.R.E. Act) and direct the learned Additional Assistant Commissioner of Endowments, Berhampur (Opposite Party No.5) to hold fresh auction of the immovable properties in question belonging to the Hindu Religious Institution, i.e., Radhakrishna Lalita Temple at Hinjili in the District of Ganjam (Odisha) following the modality as had been directed by the Commissioner of Endowments, Odisha (Opposite Party No.3) in his order dated 11.12.2018 passed in Original Application No.08 of 2004.
2. Said Petitioner Ritanjali Sahu had raised the following grievances for redressal:-
i) that the Appellate Authority by the impugned order without any reason has illegally reduced the upset price determined by the learned Commissioner of Endowments;
ii) that after that order of the Appellate Authority, the Interim Trustee, having not at all followed the procedures prescribed in law and the order of the learned Commissioner to that effect, which was not varied or set aside in Appeal and rather flouting all those in collusion Opposite Party No.8 (auction purchaser) has gone ahead in auctioning the immovable property of the Page 3 of 49 Religious Institution giving the same as a show in pen and paper and not as reality."
3. At this stage, it be stated that this Court, by order dated 08.10.2020, had disposed of the writ petition as at (A) by passing the following order "In view of the above, since on the face of the order, it is apparent that the order under Annexure-1 is neither fair nor in the interest of the deity or beneficial to the institution and a nullity in the eye of law being not a reasoned/speaking one, this Court is inclined to quash the same. Accordingly, the order passed by opposite party no.1 dated 01.03.2019 under Annexure-1 is quashed. This Court restores the order passed by the learned Commissioner of Endowments dated 11.12.2018 in O.A. No.08 of 2004 and directs the opposite parties to proceed with the auction as per the procedure and upset price fixed by the learned Commissioner of Endowments and complete the entire exercise within a period of two months from today. Since this Court has quashed the order passed by the opposite party no.1 dated 01.03.2019 under Annexure-1, the process of auction started, if any, pursuant to such order under Annexure-1 is also quashed. Opposite party no.5 is directed to take fresh step as directed by the learned Commissioner of Endowments in its order dated 11.12.2018 in O.A. No.8 of 2004."
With the aforesaid observation and direction, the writ petition is disposed of. "
Challenging the said order, the Interim Trustee, Nilamadhab Sahoo, representing the Opposite Party No.7- Radha Krishna Lalita Temple along with the Opposite Party Page 4 of 49 No.8, who claimed to be the auction purchaser of the land in question, had carried an Appeal to the Hon'ble Supreme Court.
The Hon'ble Supreme Court allowed the said Appeal and by setting aside the impugned order passed by this Court on 08.10.2020, restored the original proceeding before this Court and directed for fresh adjudication after hearing the parties including the Opposite Party No.8, who had not been given the opportunity of hearing when the writ petition had been disposed of.
The order of the Hon'ble Supreme Court reads as under:-
"xx xx xx
Xx xx xx
6. We are, therefore, inclined to allow the appeal and set aside the impugned order of the High Court and to restore the writ proceedings before the High Court for fresh consideration. We do so only on the ground that the second appellant who was an auction purchaser has not been heard by the High Court. We clarify that we have expressed no opinion on the respective rights and contentions of the parties which are kept open to be decided by the High Court.
7. The appeal is accordingly allowed by setting aside the impugned judgment and order of the High Court dated 8 October 2020. Writ Petition Civil No 25751 of 2020 is restored to the file of the High Court for disposal afresh. All the rights and contentions are kept open.Page 5 of 49
8. The applications for intervention, impleadment and transposition are disposed of. 9 Pending applications, if any, stand disposed of.
9. Pending applications, if any, stand disposed of."
4. When the matter stood thus, the Petitioners of the writ Petition as at (B) filed an Intervention petition in the writ Petition as at (A) and this Court on 11.08.2021 had directed as under:-
"xx xx xx In the interim, it is directed that no sale deed will be executed on behalf of anybody by the Non-Hereditary Managing Trustee of the Temple, possession over the land in question shall not be handed over to anybody and nature and character of the land in question shall not be changed till disposal of the Writ petition." In the meantime, the original Petitioner, namely, Ritanjali Sahu filed an application seeking permission to withdraw the writ petition. That petition as well as the intervention petition being heard together, this Court, by order dated 17.10.2023, has permitted the original writ Petitioner, namely, Ritanjali Sahu, to withdraw from the scenario of the proceeding and allowed the intervention of the present Petitioners for being transposed in place of the original writ Petitioner, Ritanjali Sahu.
5. Facts necessary for the purpose are stated as follows: -
Radha Krishna Lalita Temple at Hinjili, a Hindu Religious Institution through one person, namely, Mohan Page 6 of 49 Sahu, who asserted himself as the fit person of the Religious Institution filed an application under section 19 of the OHRE Act seeking permission from the learned Commissioner of Endowment, Odisha for sale of the land measuring in total Ac7.871 decimal (Seven Acres and Eight Hundred and Seventy One decimals) under different plots appertaining to khata no.978 in Mouza Hinjili belonging to the Institution.
Although, said application had been filed by the Religious Institution through one Mohan Sahu claiming himself as the fit person, it was, however, not stated as to what was his status vis-à-vis the Religious Institution.
It was simply stated as under: -
"That the applicant is the fit person of the above-named temple."
The ground for seeking permission for sale of land was the difficulty in managing the Temple with limited income that was being earned. Surprisingly, in that petition said Mohan Sahu as the fit person had even gone to propose the price to be fixed for sale of the immovable property of the Religious Institution. The petition when was lying as it is, on 15.01.2014, one Nilamadhab Sahu came up with an application through his lawyer for being substituted therein stating that he being appointed as Interim Managing Trustee on 31.05.2010 be substituted in place of the erstwhile Petitioner, namely, Mr. Mohan Sahu, who claiming to Page 7 of 49 be the fit person, had filed the application on behalf of the Religious Institution seeking permission to sell the above land owned and possessed by the Religious Institution and asserted that he would then onwards pursue the said application on behalf of the Religious Institution.
By order dated 16.11.2015, that substitution was allowed and that Interim Managing Trustee namely, Nilamadhaba Sahoo thus prosecuted the application seeking the permission for sale of the immovable property of Hindu Religious Institution. The learned Commissioner of Endowment by his order dated 11.12.2018 granted the permission for sale of the land in question with the condition that the land would be put to public auction keeping the upset price at Rs.70,00,000/- per Acre and fixed the modalities/procedures to be followed while holding the said auction as also laying the plan for investment of the sale price which would be so received keeping in view the interest of the Institution and for its benefit.
6. That order of the learned Commissioner was challenged by carrying an appeal under section 19 (4) of the OHRE Act by none other than the Religious Institution represented by its Interim Managing Trustee, namely, Nilamadhab Sahu. The challenge in that Appeal was, however, confined only to the fixation of the upset price for auction sale of the land. The Page 8 of 49 Appeal came to be heard by the Hon'ble Minister of Law, Odisha and stood disposed of on 01.03.2019, which is the subject matter in the writ petition originally filed by Ritanjali Sahu asserting herself as an intending purchaser of the said property directed to be put to auction sale pursuant to the order raising the ground that the auction of the immovable property had been conducted in gross violation and flouting the procedures prescribed under the Rules and orders.
7. The Appellate Authority, in seisin of the Appeal went through the Benchmark Valuation Report relating to different plots of land as had been submitted by the Sub-Registrar, Hinjli as being called for by order dated 23.02.2019. The report was post disposal of the original application by the learned Commissioner of Endowment on 11.12.2018. The said report had been called for during pendency of the Appeal. Then on going through that report as it reveals from the order, the Bench mark Valuation of each plot of the land as reported were quoted and the following short order has been passed:-
"xx xx xx xx After hearing the appellant and the respondent present and the representative on behalf of the respondent no.1 and the Asst. Law Officer on behalf of the Commissioner of Endowments and perusal of the copy of the order dated 11.12.2018 passed by the Commissioner of Endowments along with the case record, the institution is not getting any income from Page 9 of 49 those lands. The said proceeds fetch more income to the institution. If it will be deposited in any Nationalized bank in a long term fixed deposit scheme. It appears that there is legal necessity to sale the case land which will be beneficial to the deity and it appears to me that the price fixed by the learned Endowment Commissioner is very high about the Bench Mark Valuation. In the fitness of the things and to arrive at a reasonable price, the price is fixed enhancing 10% over the Bench Mark Valuation."
8. The above order passed in the Appeal is under the challenge in this writ petition.
It be stated at this stage, that in the meantime Radha Krishna Lalita Temple represented by its Non-Hereditary Trust Board (NHTB) as formed under the orders of the learned Commissioner of Endowment under section 27 of the OHRE Act filed W.P.(C) No.17479 of 2021 as at (B) with the prayers to quash the order dated 11.12.2018 passed by the learned Commissioner of Endowment in O.A No.8 of 2004 as well as the order passed by the Appellate Authority in Appeal No.2 of 2019 and all subsequent actions and proceedings which have taken place pursuant to those orders. Said writ petition had been heard with the writ petition as at (A) filed earlier, for their disposal together by this common judgment.
9. We have heard Dr. K. N. Tripathy, learned Counsel for the present Petitioners in both the writ petitions. We have also heard Page 10 of 49 Mr. S. N. Das, learned Additional Standing Counsel representing the State, Ms. P. Naidu, learned Counsel for the Commissioner of Endowment, Mr. S. K. Choudhury, learned Counsel for the then Interim Trustee, namely, Nilamadhab Sahu who prosecuted the application under section 19 of the OHRE Act and had carried the Appeal under section 19(4) of the Act representing the Religious Institution and is no more in the Non- Hereditary Trust Board of the Religious Institution. We have also heard Mr. T. K. Mishra, learned Counsel for the Opposite Party No.8, who is the auction purchaser in the auction said to have been held on 18.03.2020 and so far standing as the beneficiary in the entire process and claims to have derived the right, title, interest and possession over the property of the Religious Institution by virtue of the sale deed executed and registered on 03.09.2020 for a consideration of Rs.1,40,00,000/- (Rupees One Crore Forty Lakhs) paid by him under Fixed Deposit made in the name of the Religious Institution on 05.06.2020 in HDFC Bank.
We have carefully gone through the averments taken in the writ petition, counter affidavits and additional affidavits filed by the parties as well as all the documents annexed thereto which would be referred to as and when so required in course of our discussion to follow.
Page 11 of 49
10. An application under section 19 of the OHRE Act was filed before the learned Commissioner Endowment on 20.01.2004. The Religious Institution at that time was represented by Mohan Sahoo, who had asserted himself as the fit person. Said application when was lying like that after about a decade, one Nilamadhab Sahu on 15.01.2014 stating to have been appointed as Interim Trustee of the Religious Institution, on 31.05.2010 filed an application for his substitution in place of Mohan Sahoo, the person who as the fit person had filed the Original Application under section-19 of the OHRE Act. Said application finally came to be disposed of on 11.12.2018 after lapse of around 4 years.
When said Nilamadhab Sahu, by filing the substitution petition, wanted to pursue the Original Application filed about a decade back, he, in his application or while amending the application later provided no such reason/justification as to if the sale of that large patch of land was then also necessary and beneficial to the Religious Institution indicating the financial condition of the Institution as regards its income and spending. Be that as it may, the learned Commissioner of Endowments, while according permission for sale of the land involving acreage of Ac. 7.871 decimal (Seven Acres and Eight Hundred Seventy One decimals), as ordained under the provision contained in section 19 of the Act fixed the upset price for the Page 12 of 49 auction sale to be held for said land at Rs.70 lakh per Acre, which was found to be the minimum adequate market price of the land in that locality. It was also put as a condition that 30 days before the auction, there shall be advertisement by beat of drums in the locality as well as by publication in any Odia Daily Newspaper like "Dharitri", "Samaj", "Sambad", "Samay" or English Daily like "The Times of India" having wide circulation in the locality. Further order in the interest and benefit of the deity was passed indicating as to how the fetched sale consideration would be invested. More importantly, it was put as a condition that the sale be effected within 6 (six) months after the expiry of the period of Appeal or Revision and if no Appeal or Revision is preferred in the meanwhile and in case of Appeal or Revision as per the orders of the Appellate/Revisional Authority following the provisions contained in Section 19 (C) (1) of the OHRE Act that it shall be first offered to the State Government for purchase of the said land for public purpose which shall not be at the price less than the amount fixed as the adequate consideration of the land in question, meaning thereby the upset price so fixed.
That Interim Managing Trustee, namely, Nilamdhaba Sahoo on behalf of the Religious Institution then feeling aggrieved and dissatisfied by that order of the learned Commissioner whereby the permission for sale of that entire Page 13 of 49 patch of land of Ac.7.871 (Seven Acre Eight Hundred Seveny One decimals) was allowed, carried an Appeal under section 19(4) of the Act to the Government in the Department of Law, which came to be heard and disposed of by the Hon'ble Minister of Law. He filed the Appeal only challenged/questioning the upset price as had been fixed by the learned Commissioner, Endowments for the auction sale of the property of the Religious Institution as to have been fixed on a higher side but not challenging any other condition/s.
It has to be borne in mind that by that time, the property was not even put to auction showing any such result that for such fixation of the up-set price by the learned Commissioner, there being no participation, the very purpose and objective behind the permission for sale of the land of the Religious Institution stood frustrated. The Appellate Authority calling for the Benchmark Valuation and Market Valuation report (as noted) from the concerned Sub-Registrar sat over to observe that it appeared from the Bench Mark Valuation report that the upset price fixed by the learned Endowment Commissioner was too high. So, the Appellate Authority fixed the upset price for the auction of the land giving enhancement of 10% (ten percent) over the Benchmark Valuation shown by the Sub-Registrar in holding that the same would be reasonable and accordingly, Page 14 of 49 directed that the auction of the land with that upset price be held.
11. The upset price for sale of the land in public auction which had been set forth by the learned Endowment Commissioner was Rs.70 lakh per acre for auction sale of Ac.7.871 (Seven Acres and Eight Hundred Seven One decimals) thus was redetermined by the Appellate Authority in Appeal.
A table indicating Benchmark Price, the Adequate Price fixed by the Original Forum as well as the Appellate Forum is provided herein below for better appreciation of the matter.
Sl. No. Plot No. Benchmark Upset Price/Adequate Upset Price/Adequate
Valuation (Per Price determined by the Price determined by
Acre) learned Endowment The Hon'ble Minister
Commissioner (Per of Law (Per Acre)
Acre)
1. 838 Rs.3,51,000/- Rs.70,00,000/- Rs.3,86,100/-
2. 840 Rs.3,51,000/- Rs.70,00,000/- Rs.3,86,100/-
3. 857 Rs.6,50,000/- Rs.70,00,000/- Rs.7,15,000/-
4. 859 Rs.6,50,000/- Rs.70,00,000/- Rs.7,15,000/-
5. 879 Rs.3,75,000/- Rs.70,00,000/- Rs.4,12,500/-
6. 899 Rs.3,75,000/- Rs.70,00,000/- Rs.4,12,500/-
7. 3436 Rs.3,75,000/- Rs.70,00,000/- Rs.4,12,500/-
8. 3433 Rs.74,25,000/- Rs.70,00,000/- Rs.81,67,500/-
9. 3438 Rs.3,75,000/- Rs.70,00,000/- Rs.4,12,500/-
10. 625 Rs.3,75,000/- Rs.70,00,000/- Rs.4,12,500/-
11. 714 Rs.3,75,000/- Rs.70,00,000/- Rs.4,12,500/-
12. 716 Rs.3,75,000/- Rs.70,00,000/- Rs.4,12,500/-
12. From the above, it thus appears that when the learned Commissioner of Endowment had found out the Adequate Price for the land in question at Rs.70,00,000/- per Acre as he was under the obligation to do so as provided under section 19 of the OHRE Act; in an Appeal, the Appellate Authority has held the Page 15 of 49 Adequate Price of different plots of land differently and thereby there has been reduction in the adequate price for the land, which can be seen from the following table:-
Sl. Plot Upset price Upset Fixed Reduction made by Percentage No. Nos. Fixed by by Hon'ble Hon'ble Minister per of reduction learned Minister per Acre. by Hon'ble Commissioner Acre Minister per per Acre Acre
1. 838 Rs.70,00,000/- Rs.3,86,100/- Rs.66,13,900/- 94.48%
2. 840 Rs.70,00,000/- Rs.3,86,100/- Rs. 66,13,900/- 94.48%
3. 857 Rs.70,00,000/- Rs. 7,15,000/- Rs.62,85,000/- 89.78%
4. 859 Rs.70,00,000/- Rs. 7,15,000/- Rs. 62,85,000/- 89.78%
5. 879 Rs. 70,00,000/- Rs.4,12,500/- Rs.65,87,500/- 94.10%
6. 899 Rs. 70,00,000/- Rs.4,12,500/- Rs. 65,87,500/- 94.10%
7. 3436 Rs. 70,00,000/- Rs.4,12,500/- Rs. 65,87,500/- 94.10%
8. 3438 Rs. 70,00,000/- Rs.4,12,500/- Rs. 65,87,500/- 94.10%
9. 625 Rs. 70,00,000/- Rs.4,12,500/- Rs. 65,87,500/- 94.10%
10. 714 Rs. 70,00,000/- Rs.4,12,500/- Rs. 65,87,500/- 94.10%
11. 716 Rs. 70,00,000/- Rs.4,12,500/- Rs. 65,87,500/- 94.10% Only for the land under Plot No.3433, the upset price fixed by the Appellate Authority in Appeal came to be Rs.81,67,500/-
as against the upset price fixed by the learned Commissioner at Rs.70,00,000/-. For this lone plot of land, as per order of the Appellate Authority, there has been enhancement of Rs.11,67,500.00 (Rupees Eleven Lakhs Sixty Seven Thousand Five Hundred).
Thus, for all the land covered under 12 plots, when the learned Commissioner had fixed the total upset price at Rs.5,50,97,000/- (Rupees Five Crores Fifty Lakhs Ninety Seven Thousand), the same has been fixed at Rs.1,25,03,411/- (Rupees One Crore Twenty Five Lakhs Three Thousand Four Hundred Eleven). In this way, the Hon'ble Minister, in the Appeal, has Page 16 of 49 reduced the upset price for all those lands covered under 12 plots for their sale by Rs.4,25,93,589/- (Rupees Four Crores Twenty Five Lakhs Ninety Three Thousand Five Hundred Eighty Nine).
13. Under the Scheme of the OHRE Act, as provided under section 4 of the section therein, the State Government, by notification, appoints a person professing the Hindu religion who is a member of Odisha Superior Judicial Service to be the Commissioner of Endowments with the caveat that he would cease to hold the office as such when he ceases to profess that religion. The powers and duties of the Commissioner has been provided in Chapter-II of the said Act under section 7 of the Act, which reads as under:-
7. Powers and Duties of Commissioner: -
(1) Subject to the provisions of this Act, the general superintendence of all religious institutions and endowments shall vest in the Commissioner.;
(2) The Commissioner may do all things which are reasonable and necessary to ensure that the religious institutions and endowments are properly administered and that their income is duly appropriated for the purposes which they were founded or exist.
Explanation: - The Commissioner shall have power to pass such interim orders as he deems necessary for the proper maintenance of a religious institution, or the proper administration of a religious endowment including the Page 17 of 49 power to pass such orders if and when necessary for the proper management of any institution when a dispute concerning the same is pending in a Court.
The above provision makes it clear that the learned Commissioner has the general superintendence over all the Hindu Religious Institutions and Endowments which vest in him and he may do all things which are reasonable and necessary to ensure that the Religious Institutions and Endowments are properly administered and their income is duly appropriated for the purpose for which they were founded and exist.
A bare reading of the above provision would show that when the Religious Institutions and Endowments are managed by the Officials in the field, the learned Commissioner has the power of general superintendence over them and for proper administration, providing income and utilization and the Commissioner may do all such things which are reasonable.
14. The OHRE Act in section 19 creates a bar for transfer by exchange, sale or mortgage and lease for a period exceeding five years of any immovable property belonging to, or given or endowed for the purpose of, any Hindu Religious Institution without the sanction of the learned Commissioner. The learned Commissioner while deciding the matter of sanction as per the provision is under the legal obligation to look into the necessity Page 18 of 49 for such transfer and find that the same if is beneficial to the Religious Institution. Any transfer without the sanction as per the said section is not valid and operative.
15. At this stage, it would be apt and proper to give a careful reading to the said provision of section 19 of the O.H.R.E. Act, which runs as under:-
"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 for beneficial to the institution and no such transfer shall be valid or operative unless it is so sanctioned.
Explanation: - A 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 purpose of this Sub-Section, be deemed to be a lease for a term exceeding five years.
(1-a) 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.
(1-b) 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:
Page 19 of 49
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 subject- matter of a lease executed after commencement of the Odisha 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.
(1-c) Notwithstanding anything contained in the proviso to Sub-Section (1-b), 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 (1-c), 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 Page 20 of 49 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:
Provided that appeals from the orders communicated or published prior to the date of commencement of the Odisha 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 of 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 Sub-Section (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 sub-Section (1), the State Government may exercise Page 21 of 49 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 subject-matter 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."
16. As provided in sub-section 2 of section 19 of the O.H.R.E. Act, the learned Commissioner while according such sanction is empowered to put any such conditions and give any directions as he may deem necessary regarding utilization of the amount raised by the transactions, the investment thereof and in case of mortgage even regarding discharge of the same within a reasonable period.
The learned Commissioner, being placed in the position as the super guardian, has to look into everything in these regards through the prism of the best interest of the Religious Institution for its optimum benefit and for that end being the paramount consideration since the Religious Institution is a perpetual minor in the eye of law. The above exercise, as mandated under law, has to be done by the learned Commissioner only after he takes a decision that there exists the necessity for transfer the Page 22 of 49 immovable property of the Religious Institution and that is also needed for the benefit and to serve the best interest of the Religious Institution. As the action of the guardian in respect of the minor's person and property must satisfy the paramount test and consideration as to the welfare and benefit of the minor, the same is the case in respect of Religious Institution. By the above provision, the legislative intends that the learned Commissioner should do all the needful in that regard.
17. In the given case, the learned Commissioner has granted the sanction for sale of the immovable property of the Religious Institution by its judgment dated 11.02.2018 basing upon an application made in the year 2004 that is after about 14 years. Important to note the fact here is that the person claiming as fit person, who on behalf of Religious Institution had originally filed the application being no more there to pursue the same, the subsequent Interim Managing Trustee came to pursue the said application in the year 2015, which is after 11 years of filing of the original application, which came to be decided after lapse of 14 years.
Be that as it may, the learned Commissioner in its order has arrived at a conclusion that the sale of the lands in question is essential and would be beneficial to the said Religious Institution. Having held so, he has fixed the condition that the Page 23 of 49 land in question shall be sold by way of public auction and in the manner as directed. The learned Commissioner, being ordained under law, in the best interest and for the benefit of the Religious Institution in order to see that when the Religious Institution would be loosing the land once for all, it must get the optimum consideration, fixed the upset price for the said auction to be held for the sale of the land at Rs.70,00,000/- per Acre.
18. At the risk of repetition, we find it very interesting and at the same time shocking to put that before the auction of the immovable property of the Religious Institution was held with the upset price as fixed by the learned Commissioner that Interim Managing Trustee, Nilamadhab Sahoo, representing the Religious Institution filed an Appeal under sub-section-4 of section-19 of the Act raising the objection in only opposing the fixation of the upset price of the land by the learned Commissioner and questioning that upset price to be excessively high in further praying that the upset price of all the plots except the one that is plot no.3433 be reduced/lowered down. It is not understood and rather highly baffling and disturbing to note that when his move as to sale of the immovable property has been accepted by grant of permission/sanction and the direction of the learned Commissioner has not at all been carried into action by even putting once to test, how there had arisen any Page 24 of 49 reason or justification for the Interim Managing Trustee behind the move in Appeal seeking reduction of the upset price fixed by the learned Commissioner as the minimum adequate price/consideration for sale of the land of the immovable property of the Religious Institution. The Interim Managing Trustee is under legal obligation to do any/all such acts in relation to the Religious Institution, keeping the best interest of the Institution in mind and for its welfare and benefit. We fail to follow for a moment that this move of filing the Appeal by Interim Managing Trustee (O.P. No.7) how was in the interest of the Religious Institution and its welfare at that point of time when the fact remains that more the price is fetched by sale, the more it is beneficial to the Religious Institution in serving its better interest. Had it been said to be low, to move that it be enhanced would have been for the interest and benefit of the Religious Institution standing to reason which here is juxtaposition. The Interim Managing Trustee questioned the upset price where he had no concern at all and when the fixation of the upset price on a lower side as prayed for by him, would be highly detriment and against the interest of the Religious Institution. This very move by the Interim Managing Trustee of the Religious Institution makes it clear as to how he was keen to safeguard the Religious Institution in acting in that manner, which exposes that he acted adverse to that interest of the Page 25 of 49 Religious Institution. Had there been the auction once and that if would have failed due to non-participation, automatically the matter being so reported to the learned Commissioner, he would have been legally obliged to take the call and revisit the matter in order to see that the immovable property of the Religious Institution required to be sold for the benefit and in the interest of the Religious Institution finally materialises and that the condition/direction as regards upset price does not stand as the impediment on the way of implementation of the order of sale and accordingly needs modification as deemed just and proper at that time point of time taking into consideration the surrounding circumstances then prevailing.
Furthermore, even though we say that the Interim Managing Trustee had then no say over the matter of fixation of the upset price for the auction sale of the immovable property of the Religious Institution, still that Interim Managing Trustee has nowhere indicated as to what should be the adequate market price so that the same be fixed as the upset price for the auction and more importantly, why he seeks for reduction.
19. The order of the learned Commissioner Endowments passed in O.A. No.08 of 2004 on 11.12.2018, being received in the Department of Law, Government of Odisha, as required under the provisions of the Act and Rules, Memorandum of Appeal Page 26 of 49 was presented by Nilamadhaba Sahu, the said Interim Managing Trustee and came to be received.
The file, being placed before the Appellate Authority on 03.02.2019, he posted the Appeal to 08.02.2019 at 12.00 hours for hearing. Although the file for hearing was submitted before the Appellate Authority on 07.02.2019 and it was so received in his office, no such order, however, was passed on 08.02.2019. The Appellate Authority, then suddenly on 16.02.2019 ordered that the Bench Mark Valuation and the Market Valuation of the concerned land be obtained from the Sub-Registrar, Hinjili, Ganjam within a week and the Appeal be put up for hearing. Then also no particular date was fixed. The Sub-Registrar, furnished the Bench Mark Valuation of the land and simultaneously intimated that no such transaction relating to the land in the nearby locality, having been made in his office, the Market Valuation of the land could not be ascertained at his end for being so reported as desired. The report was seen by the Appellate Authority on 08.03.2019, when the file had been submitted before him upon receipt of the said report of the Sub- Registrar on 28.02.2019 and received in his office on 01.03.2019. When the matter stood thus, on 13.03.2019, the Section Officer of the Department of Law received the copy of the order dated 01.03.2019 passed by the Appellate Authority in Appeal Case No.2 of 2019 and then communicated the same to the learned Page 27 of 49 Commissioner of Endowment and returned the LCR. When the file reveals that Appellate Authority went through the report on 08.03.2019, it is curious enough to note that the final order in the Appeal had by then already been passed on 01.03.2019. The final order appears to have been made ready on the next day of receipt of the file with the said report without perusing the report although so noted in the final order to have been gone through. The file does not reveal that the Appeal at any point of time was heard and the Opposite Party No.7 (Appellant therein) had advanced his submission for reduction of upset price. The date, i.e., 08.02.2019, being fixed as the date of hearing, the entire file does not show as to if at all thereafter the Appeal has been heard. It is also interesting to note that when on receipt of the order of the learned Commissioner Endowments, the file was moved no such order has been passed in declining to initiate any suo motu Revision, which is mandated in law but then the Appeal filed by the Interim Managing Trustee only continued. When the Appellant of that Appeal, i.e., the present Opposite Party No.7 had not argued in the Appeal, how was it then kept alive for the Appellate Authority to pass an order on merit accepting the whole prayer in the Appeal by reducing the upset price. Viewing all these, it appears as if the Hon'ble Minister, suo motu reduced the upset price, which was not all within his competence and power as per law.
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20. At this juncture, it is not understood that when the Appellate Authority after having disposed of the Appeal became functus officio, upon receipt of application dated 23.12.2019 from Iswar Das and others and letter dated 10.01.2020 from the Additional District Magistrate has passed specific order that when the period prescribed under sub-section 2 of section 19(C) of the O.H.R.E. Act has expired and no further extension has been made, "No Objection Certificate" (NOC) be issued to the concerned Sub-Registrar as well as the Trustee be intimated about it under intimation to the Collector. Such a direction was given on 06.02.2020, after lapse of about a year after disposal of the Appeal and that was when the Additional District Magistrate has expressed his concern as under:-
"Further, I am to say that though from time to time this office is getting instruction to dispose of the cases, but due to certain shortcoming observed in the cases, this office could not dispose it of in time. Hence, you are requested to give necessary instruction/clarifications deity property-wise transmitted to Government vide above letters for taking necessary action at this end. However, in the meanwhile this office has processed the deity land of different religious institutions like (1) Radhakrishna Lalita Bije at Hinjili, (2) Sri Radha Mohan Mohaprabhu and Radha Damodar Mahaprabhu Bije at Radha Mohan Matha, Nuasahi, Digapahandi, (3) Sri Raghunath Mahaprabhu Bije at Nimakhandi and (4) Sri Jatadhareswar Swamy Bije at Khaspa street, Old Berhampur which will be hoisted in public domain for necessary information of all possible Government Page 29 of 49 Department for processing the cases to give "No Objection Certificate" or willingness certificate for use of the deity property for public use.
Xx xx xx xx"
Although Iswar Das and others claiming to be the Heriditary Trustee and the Managing Heriditary Trustee of some other Religious Institutions, in that application, had requested the Secretary, Department of Law to issue appropriate instruction/direction to the Sub-Registrar, Berhampur for registration of the land in question as the period of offer letter has crossed the stipulated time since long, it is not understood as to how these applications were at all entertained by the Appellate Authority when said applicants had no concern at all in the matter. The Appeal file contains the photocopy of the said application. There is absolutely no noting in the file regarding these applications and the file contains the photocopy of one note-sheet, which is said to be an extract taken from another file opened in the year 2018.
Furthermore, when the Appellate Authority, as per his order, had not received the report relating to the Market Value of the land from the Sub-Registrar and that report was only on the Bench Mark Valuation, nothing has been stated about the Market Valuation of the land and the Appellate Authority appears to have taken the approved Bench Mark Valuation to be Page 30 of 49 the market value of the land so as to say what would be the adequate price, which is absolutely incorrect and fundamentally wrong; both being conceptually and contextually different.
21. The relevant provisions are contained in section-47-A of the Indian Stamp (Odisha Amendment) Act, 2008 read with the corresponding rules in the Odisha Stamp Rules, 1952 under Chapter-VI would throw the light on the matter. The Sub-section-
(1) Section 47-A of the Indian Stamp Act (Odisha Amendment) provides as to how instruments under-valued to be dealt with. It says that where the Registering Officer under the Registration Act, 1908, while registering any instrument of conveyance , exchange, gift, partition or settlement has reasons to believe that the market value of the property which is the subject matter of the instrument has not been rightly set forth in the instrument or is less than the minimum value determined in accordance with the rules made under the Act, he shall, before registering such instrument, refer the matter to the Collector, with an intimation in writing to the person concerned, for determination of the market value of such property and the proper duty payable thereon.
Coming to the Odisha Stamp Rules, 1952, we find the market value to have been defined in Rule-2(f). So, the market value as finds mention in section-47-A of the Act is to be given Page 31 of 49 the meaning as per the above rule. The market value as defined in the Rule-2(f) of the Odisha Stamp Rules, 1952 is as under:-
"(i) the value of any property estimated to be the value which in the opinion of the Collector or the appellate authority, as the case may be, would have fetched or would fetch, if sold, in the market on the date of execution of the instruments; and
(ii) the value of any property which is the subject matter of conveyance, exchange, gift, partition or settlement by or on behalf of the Central Government or the State Government or any authority or body incorporated by or under any law for the time being in force as shown in the instrument."
Rule-37 of Chapter-VI of Odisha Stamp Rules, 1952 refers to the constitution of the District Level Valuation Committee and Sub-District (Tahasil Level) Valuation Committee and Rule- 38 provides the function of the District Level Valuation Committee, when Rule-39 describes the function of the Sub- District Valuation Committee. In Rule-40, it is stated that market value guidelines prepared under this Chapter shall be issued as soon as they are prepared and shall thereafter be revised biennially from the 1st April. It is also provided therein that in case, the Committee fails to revise the valuation, the Collector as Chairman would enhance the value by ten percent of the value so fixed. For preparation of the valuation, what have been stated in clause (a) of Rule-39 and the Appendix-II which provides principle for determination of market value and such other Page 32 of 49 instructions issued by the Government and Inspector General of Registration (IGR), from time to time shall be taken into consideration. Under Rule-41-A, the State Government reserves the power to engage reputed professional agency to examine the procedure for fixation of market value guideline regarding proper value of the properties in any particular area or areas under such terms and conditions as considered proper for being taken into account by the Committee for such area/areas.
A conjoint reading of the provisions contained in sub- section 1 of section 47-A of the Stamp (Odisha Amendment) Act, 2008 and Orissa Stamp Rule made thereunder makes the following things clear:-
"a. the Registering officer before registration of the instrument, has to arrive at a conclusion that valuation put-forth in the instrument is the proper value of the property, which is the subject matter of the instrument or in other-words that has not been undervalued.;
b. for the purpose of registration, he must have the reasons to believe that the market value of property, which is the subject matter of the instrument, has been rightly set-forth in the instrument.; and c. where if not more at least the market value of the property determined under the said rules made in accordance with the Act has been set-forth as the market value of said property, which is the subject matter of the instrument, the Registering Officer would have all the satisfaction that the market value of the property has been rightly set-forth, then the scope for Page 33 of 49 the Registering Officer to refer the matter to the Collector for determination of the proper duty payable thereon would no more be there."
This is because of the reason that the Collector himself is associated in determination of the market value of the property as provided in the rules. The market value has to be taken to mean so with reference to the objective set-forth in the Stamp Act in charging stamp duty and the fees for registration as the consequence. The market value thus determined under the rules is only for the purpose of acceptance of the document for registration by the Registering Officer by arriving at a satisfaction that the market value of the property, which is the subject matter of the instrument has been rightly set-forth in the instrument. The definition of the market value, as given in the rules, thus is only confined for the purpose as aforesaid and not beyond that to say that the same would be the market value of the property in question for transfer of the property in open market when the property is offered in open market for transfer that would depend upon very many factors including the time when the transfer is being made, the market value meaning the reasonable consideration thereof can never be equated with the market value determined under the rules as above. That is the reasons the Sub- Registrar has very rightly stated that as such translations of the land in the locality has been registered in his office, he was not in Page 34 of 49 a position to report about the market valuation of the land and he simply supplied the Bench Mark Valuation, i.e., the valuation of land fixed for satisfaction of the Registering Authority as to market value so as to charge the stamp duty and consequential collection of the fees for registration.
So, for the purpose of determining the adequate price at which the immovable property belonging to the Religious Institution for the transfer while according sanction under section 19 of the O.H.R.E. Act, said market value determined under Rule-2(f) and the other rules made under Chapter-VI of the Odisha Stamp Rules keeping in view the provisions contained in section 47-A of the Stamp (Odisha Amendment), 2008 can never so accepted and under no circumstance be held to be the adequate price. The Appellate Authority, in the present case, while going to pass the order by substantial reduction of the upset price, has not kept in mind the above fundamental and very common feature. The determination of the upset price being the adequate price has been done in an arbitrary manner detriment to the interest and welfare of the Religious Institution and not to benefit the Religious Institution.
The Appellate Authority has abruptly fixed the upset price by increasing 10% over the said Bench Mark valuation given by the Sub-Registrar as if offering one peanut more to the Religious Institution as of charity/grace. For all these aforesaid discussion; Page 35 of 49 we are more than satisfied that the final order passed in Appeal which has been impugned in this proceeding before us is wholly unsustainable and should not be allowed to stand and as such liable to be quashed as nonest in the eye of law and so also any/all said actions taken/done in pursuance thereof and consequential thereto must not be allowed to stand. On this ground alone, the order of the Appellate Authority passed in the Appeals, being impugned in this proceeding before us, is also liable to be set aside.
Thus, it appears that no such effort has been made to ascertain the Market Value of the land in question to find out the adequate price for its sale for determining the upset price for the land in the auction sale.
22. Next turning our attention to Sub-section-3 of section 19, we find that it provides that the copy of the order made by the Commissioner under said section shall be communicated to the State Government and the Trustee and shall be published in such manner as may be prescribed. The OHRE Rules 1959 in sub-rule 2 of rule 4 prescribes that the copy of the orders in addition of being communicated to the State Government, the Trustee or Trustees and to the intended alienees, be also published by affixation on the notice Board or the front door of the Religious Institution concerned and in a conspicuous place Page 36 of 49 of the village where the property in question situates. Both modes have to be complied with and in their absence, the inevitable conclusion would be that there was no due publication of the order, and that order thus cannot be further carried into action and even if carried into action, all such actions would be null and void. What we mean here is to say that the very objective of all these is to protect and safeguard the interest of the Religious Institutions and Endowments and to do everything in a transparent manner in order to see that the Religious Institutions and Endowments are not exploited by any such unscrupulous person, even at times by the person/s in- charge having evil eyes and intention of their own standing detrimental to the interest and benefit of the Religious Institutions and Endowments, which thus can be prevented and dealt with stern hands under the law in palce. The other purpose is to bring everything to the notice of the general public who have the interest in the Religious Institutions/Endowments and thus their faith does not recede.
Sub-section 4 of section-19 provides that the Trustee or any person having interest may file an Appeal within the time period to the State Government to modify the order or seeking to set aside the order of the learned Commissioner sanctioning such transfer in the matter of such transfer of the immovable property of the Religious Institutions/Endowments. The State Page 37 of 49 Government even without there being any Appeal when finds that the alienation is not necessary or beneficial to the Religious Institution or that the consideration fixed in respect of the transfer is inadequate may within 90 (ninety) days from the date of receipt of the order communicated under sub-section-3 or the date of publication of the order whichever is later, call for the record from the learned Commissioner and after giving opportunity of hearing to the parties concerned revise the order of the learned Commissioner.
Sub-section 7 of section -19 provides that the order of learned Commissioner made under section 19(1) shall be subject to orders, if any, passed in an Appeal or Revision which shall be final.
23. At this moment, it strikes to us, the legislative intent of providing the right of Appeal in this matter. The person aggrieved by an order of the learned Commissioner is given the right to question, the said order before Government on the ground that the transfer is not necessary and/or beneficial to or in the interest of the Hindu Religious Institutions/Endowments. The price component thus gets included to be retested only with reference to the benefit and the interest of the Religious Institutions/Endowments and keeping that angle in mind and only viewing in that light. The provisions have to be given a Page 38 of 49 holistic reading in order to cull out the holistic approach to be made in Appeal. In the present case, when the prayer of the Interim Managing Trustee representing the Religious Institution for sale of the immovable property belonging to the Religious Institution had been allowed, the Appellant-Religious Institution represented by that Interim Trustee, had nothing at all to feel aggrieved. More so, as already stated when the property in question was not put to auction at the upset price of Rs.70,00,000/- per Acre as fixed by the learned Commissioner, the prayer of said Interim Trustee representing the Religious Institution only seeking reduction of the said upset price by carrying an Appeal is not understood as to how at all was to the benefit and in the interest of the Religious Institution.
24. Furthermore, when nothing is stated that the upset price so fixed was with a view to foil the move for sale and that it ultimately would not materialize without further indicating as what approximately should be the adequate price to be fixed as the upset price, the Appeal at the behest of that Interim Trustee ought to have been dismissed in limini as the Religious Institution when that Interim Trustee was representing had nothing to be aggrieved by said order as to the upset price fixed by the learned Commissioner for the auction sale of the immovable property of the Religious Institution. The right of Page 39 of 49 appeal to modify the order or set it aside as finds mention in sub-section 4 of section 19 of the O.H.R.E. Act, being read harmoniously with all the other sub-sections thereunder; keeping in view the objective behind the insertion of section 19 in the OHRE Act, clearly spell out the intention of the legislature that it was so available to reconsider the view referred to in the orders by which the learned Commissioner has refused to grant sanction or if granted that is in part but not the whole but certainly not at all in respect of the conditions imposed/fixed and directions given unless any of those are asserted to be standing adverse to the interest of the Religious Institution or detriment to its interest without going to benefit but to cause sufferance and hardship. It becomes more clear when we find in sub-section-5 that the State Government reserves the right to revise the order only when the alienation is not "necessary or beneficial to the Religious Institution", which thus empowers the State Government to annul the sanction for sale given by the learned Commissioner and when the consideration fixed for the transfer is "inadequate", then also the State Government is empowered to increase the consideration fixed for transfer as would be so decided as adequate. Therefore, we are of the considered view that no right of Appeal is available and lies seeking modification of the directions and conditions fixed by the learned Endowment Commissioner while sanctioning the Page 40 of 49 sale except as stated hereinabove. The provision of law having given the power to the learned Commissioner to fix any such directions or conditions whiling granting the sanction for transfer of immovable property belonging to the Religious Institution as it deems fit and proper and necessary in the interest of the Religious Institution and Endowments and as beneficial to the Religious Institution and Endowments, no Appeal lies to tinker with such directions or conditions unless it is shown to be arbitrary and unreasonable, being tested in the touchstone of the tests as afore-stated and being shown that those directions/conditions were so deliberately fixed in order to see that the purpose for which the permission/sanction has been accorded is in that way for such harsh, unreasonable and arbitrary conditions/directions becomes futile. Any such direction/condition on being found to be unworkable in the field and are unable to be pressed into service are permissible to be modified/substituted only by the learned Commissioner and none-else as it is the learned Commissioner, who as per law, is the Super Guardian sitting to exercise all such power of superintendence over the Trustees, who are the guardians of the Religious Institutions and Endowments in the field. The only exception remains that the consideration fixed by the learned Endowment Commissioner being inadequate the same can be sought to be enhanced by filing Appeal and on that score the Page 41 of 49 Appeal very much lies as it certainly is in the interest of the Religious Institution and for its benefit.
We are of the firm view that the Religious Institution has no right of Appeal at all seeking reduction of consideration, as in the given case, the upset price and the Appeal for that reason is not at all entertainable. The present Appeal by the Religious Institution being against such order of fixation of the upset price seeking to reduce it substantially which has huge financial implications (which has taken place in the given case) being not entertainable in the eye of law as per the view, which we have taken upon interpretation of the provision contained in section- 19 of the OHRE Act, the order of the Hon'ble Minister, on this ground, is also nonest in the eye of law.
All these, being cumulatively viewed, the present Appeal does not appear to us to be one by the Religious Institution represented by that Interim Managing Trustee but on Appeal by the said Interim Managing Trustee in his individual capacity either for serving his own interest or for serving interest of some others and for their benefit but certainly not for the benefit and interest of the Religious Institution.
25. Before parting further, we feel it pertinent to make some observations, which we sincerely hope, will be of immense help to the Authority dealing with such cases and in our view those Page 42 of 49 cannot be lightly brushed aside. Also, we are of the view that if examination is not made in the light of those, then the finding on the issue may not stand to the legal scrutiny made in the backdrop of the objective behind the enactment.
Presently in these matters of immovable property a catch twenty-two situation has arrived and, therefore, also in cases of necessity for sale, it has to be anxiously thought for a while whether looking at all the relevant factors, sale is necessary for the whole area or a part and then if in part, by utilizing a portion of the obtained sale consideration for preservation and protection of the rest part if would be in the better interest and serving more to the benefit of the Religious Institution/Endowments. The preservation when made if would fetch much more return, then the disposal of the immovable property belonging to the Religious Institutions/Endowments in entirety would not justifiably stand as a decision to test the legal scrutiny. These aspects cannot be overlooked and it is imperative to consider all those. If one thinks for a moment about sale of properties and deposit of sale proceeds viewing the rising trend of rate of inflation and simultaneously to check it, the decreasing trend of interest rate on deposits, it would be justified and reasonable to accept that in future a time may come when the sum that would be accruing towards interest would hardly be sufficient to meet the expenses for performance of Page 43 of 49 even very few or even one of the Niti-Kantis and at that time certainly repentance may come that preservation and protection of property being made if the sale would have been withheld, that would have yielded the real benefit and the grave situation would have been so prevented. At that moment, the sale made in past would prove to be a foolish/wrong move, detriment to the interest of the Religious Institutions/Endowments. But then nothing would be left in the hands to put the clock the other way round. So, it is really the important need for due application of mind without being oblivious to the ground realities, the prevailing situation and accordingly thinking of future with a realistic approach.
Taking all these into consideration, a balance has to be struck. Simply because a land is likely to be encroached being in an important or upcoming/growing/developing locality or not fetching income, the necessity for sale be not the only option to be adopted/chosen. First of all where the Religious Institution/Endowment is having sustainable income, the examination should be to explore all such possibilities of protection and preservation of the immovable properties for much more benefit in future before saying that necessity at said moment for sale exists. These being important observations taking into account the ground realities in the present days real estate development and user scenario, the authority ordained Page 44 of 49 with such onerous responsibility and duty must keep in mind while in seisin of these types of proceeding, lest it may amount to improper exercise or gross failure to exercise the jurisdiction vested in them as per law. We cannot shut our eyes to the reality that when population explosion is continuing, in our march for development, employment generation and economic growth with establishment of large number of various industries in the anvil, there has been dearth shortage and availability of land and it is so happening at a faster pace than what used to take place in past years. This position is going to continue and in the days to come, it is expected to be more at much faster rate as is said by all noted futurist to which Authority cannot also turn deaf ears.
26. Further, while deciding to allow the sale the method to be adopted as to whether for sale of large patch of land in one go or in piecemeal is certainly standing as a requirement to be dealt, as a precondition in order to ensure optimum benefit to the Religious Institutions/Endowments by way of encouraging and increasing competition. These decisions of course will vary from case to case because of varying situations which cannot be exhaustively stated. But ignoring these, if the Authority proceeds, the days may not be too far to see the extinction of these Religious Institutions/Endowments having adverse affect Page 45 of 49 on our social fabric and living which has their foundation deeply rooted to these Institutions which we have accepted as integral part of our society and life. The law makers keeping in mind that the Trustees may even honestly commit the mistake in taking a decision for alienation, have, therefore, put a rider to vest on them the power or authority in laying down that it can only be done with prior permission of the learned Commissioner appointed under section 4 of the O.H.R.E. Act prescribing the powers and duties under section 7 of the Act. So, the Authority permitting the same has a very responsible function to discharge and duty to perform in this regard. Once the permission is given, the same must be backed by all sorts of justifications including those in tune of our above observations which the Authority is called upon and rather mandated to consider in the present days scenario. All these aspects, however, have not been touched upon by the learned Commissioner and also in the order of the Appellate Authority in Appeal.
27. In the result, the writ petitions are allowed. The orders passed on 01.03.2019 in O.A. Appal No.2 of 2019 are hereby quashed.
Consequently, all said actions/deeds, which have taken place pursuant to and in consequence of the said order which Page 46 of 49 we have quashed are hereby declared null and void and also quashed. The registered sale deed dated 03.09.2020 in respect of the land in question measuring Ac.07.871 decimals in favour of the Opposite Party No.8 is accordingly declared as void, inoperative and having no force in the eye of law.
The learned Commissioner Endowments is directed to take all such effective steps within a period of two months hence to ensure that the immovable property measuring Ac.7.871 decimals (Seven Acre Eight Hundred Seventy One decimals) belonging to the Religious Institution remains in the hands of the Religious Institution which is presently managed by the Non-hereditary Trust Board for the beneficial enjoyment of the Religious Institution in its best interest and in serving the same.
Since, by now more than four years have passed from the order of the learned Commissioner of Endowment and as it is said by the Non-hereditary Trustees that the requirement for sale of the immovable property of the said Religious Institution does no more stand as the need in view of flow of funds to the Religious Institution from other sources; said order dated 11.12.2018 passed by the learned Commissioner, Endowment in O.A. No.8 of 2004 permitting sale of the land in question is held to have spent its force and, therefore, it is declared that said order would no more hold the field so as to be having any force Page 47 of 49 in the eye of law and as such does no more stand to be carried out.
Viewing the conduct of the Opposite Party No.7 that he, being the Interim Managing Trustee of the Religious Institution, as stated above, has acted in a manner and has been rigorously pursuing the matter even before us in this proceeding, which must have been at the expense of the very Religious Institution; which is highly detriment to the interest of the Religious Institution and running adverse to the Institution and thereby abusing his position as had been assigned, we hereby impose cost of Rs.5,00,000/- (Rupees Five Lakhs) to be deposited by him in the account of the said Religious Institution within a period of two (2) months hence; failing which it would be realized by the Commissioner Endowments as the outstanding dues payable to the Religious Institution as per law and invite other legal consequences.
The above deposit shall remain in an unencumbered Fixed Deposit in any Nationalized Bank for a period of ten (10) years further renewable from time to time as per the order of the learned Commissioner of Endowments and the interest earned therefrom shall pass on to the Savings Bank Account of the Religious Institution for being spent in the day-to-day affairs of the said Institution and performance of Nits-Kantis and Seva Puja.
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The consideration amount of Rs.1,40,00,000/- (Rupees One Crore Forty Lakhs) kept by the Opposite Party No.8 in deposit on 05.06.2020 in the name of the Religious Institution under Annexure-R/8 remaining pledged to the learned Commissioner, Endowments, Bhubaneswar be refunded to the Opposite Party No.8 within two weeks hence observing the legal formalities.
28. The Writ Petitions are accordingly disposed of.
The order be communicated to the Secretary to Government in the Department of Law and the Commissioner of Endowments, Odisha for onward communication to all concerned.
(D. Dash), Judge.
G. Satapathy, J. I agree
(G. Satapathy),
Judge.
Basu
Signature Not Verified
Digitally Signed
Signed by: BASUDEV NAYAK
Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 06-May-2024 15:57:52 Page 49 of 49