Orissa High Court
Smt. Magi Raulo And Others vs Principal Secretary To Govt.Of ... on 5 August, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 12594 of 2010
Smt. Magi Raulo and others .... Petitioners
Mr. Umesh Chandra Behura, Advocate
-versus-
Principal Secretary to Govt.of Orissa & others
.... Opp. Parties
Mr. P.P.Mohanty, AGA for O.P.1
None for O. P No. 2 and 3 .
CORAM:
JUSTICE S.K. MISHRA
JUSTICE SAVITRI RATHO
Order No. ORDER
05.08.2021
11. This matter is taken up by hybrid mode.
Heard Mr Umesh Charan Behera learned counsel for
the petitioners and Mr P.P. Mohanty, learned Additional
Government Advocate for Opp party No 1. None appeared for
Opp Party No 2, Commissioner, Endowments nor and Opp.
Party No.3, the Hereditary Trustee.
The petitioners claim to be the legal heirs ( wife and
children) of one Khati Raulo . Late Khati Roulo was allegedly in
occupation of the land pertaining to Plot No. 4, Khata No.42/5,
measuring Ac 0.882 decimals and Plot No.2 under Khata
No.442/15 measuring Ac.0.825 decimals, total Ac.1.707
decimals in Mouza Ambakua belonging to the deity Shri
Sankaleswar Mahaprabhu Bije at Bhabinipur as a tenant and
he was paying rent to the Managing Trustee - Opp Party No 3.
The case of the petitioners is that one Mohan Raulo
who was the Managing Trustee of Lord Sankaleswar
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Mahaprabhu Bije at Bhabinipur filed O.A. No. 78/2003 before
the Commissioner, Endowments, Orissa, Bhubaneswar (O.P.
No.2) under Section 19 Orissa Hindu Religious Endowments
Act (for short 'the Act') seeking permission to sell the aforesaid
scheduled land as the same had become unsuitable for
cultivation for want of water facility and the crop was being
damaged due to cattle trespass as the land had become
suitable for homestead after establishment of M.K.C.G. Medical
College at Berhampur and construction of houses nearby. The
present Opp party No 3 has subsequently been substituted as
Managing Trustee . Late Khati Raulo had been arrayed as O.P.
No.3 in the Original Application and after his death, the
petitioners were substituted and they contested the proceeding
and prayed therein to allow them to purchase the land as per
prevailing market price on the ground that Khati Raulo had a
preferential right to purchase the same, once the permission is
granted under Section 19 of the Act. The Commissioner of
Endowments (O.P. No.2) vide order dated 28.01.2008 (
Annexure 1 ) disposed of the Original Application granting
permission under section 19 of the Act to sell the suit land in
public auction with the minimum set up price of Rs.22 lakhs
per acre but he did not consider the plea of the petitioners for
preferential right to purchase the suit land.
The petitioners filed Endowment Appeal No. 6 of 2008
before the appellate authority Opp party No 1 . challenging the
order dated 28.01.2008. While the appeal was pending , a suo
motu Revision No. 1 of 2009 under section 19(5) of the Act was
filed and Appeal No. 6 of 2008 and Revision No. 1 of 2009 were
taken up together for adjudication and vide order dated
5.2.2010
, Opp Party No.1 1 confirmed the order of the Opp
party No 2 - Commissioner of Endowments for sale of the land
through public auction, but set aside the upset price fixed by
the Commissioner and remitted the matter back to him for
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fixation of the price afresh observing that two years had passed
in the meanwhile and the price of the land must have gone up.
Mr.Behura, learned counsel for the petitioners
submits that both the impugned orders( Annexure 1 and 2 )
are liable to be set aside as because the preferential right of
Khati Raulo has not been considered by both the authorities
and there was no basis to remit the matter for fixing the price
afresh. It has also been stated that price of the land in
question as per Government rate was Rs.8,80,000/- per acre in
the year 2008 as per valuation made by the sub-Registrar,
Berhampur and the O.P. No.2 has fixed the cost of the land at
Rs.22 lakhs per acre only on the basis of the records submitted
by the Inspector of Endowments. The reason for remitting the
case for re-assessment of the price is based on surmises and
conjectures that the price must have gone up due to rapid
urbanization which is speculative and liable to be set aside.
We have carefully perused the impugned orders vide
Annexures 1 & 2. While O.P. No.1 did not consider the plea of
the petitioners, O.P. No.2 while deciding the Appeal has
considered and rejected the contentions of the petitioners for
being granted preferential right, citing reasons which cannot be
found fault with. We are also of the view that the impugned
order vide Annexure 2 remanding the case to O.P. No.2 does
not call for any interference as the upset price had been fixed
by Opp party No 2 about thirteen years back and more than 11
years have elapsed since O.P. No.1 remitted the case to the
O.P. No.2 to take up the exercise of fixing the upset price in
the light of the observation made in his order. At paragraph-4
of the appellate order, O.P. No.1 has observed that the upset
price of Rs.22 lakhs has been fixed two years before the appeal
was taken up and due to rapid urbanization of the area, the
price of the land must have definitely gone up.
// 4 //
During pendency of the writ application , an
additional affidavit has been filed on behalf of the petitioners
stating therein that the appellate authority has accepted the
claim of the petitioners as Bhag tenants and their possession
as tenants has been declared vide judgment dated 17.11.2014
passed by learned Additional Assistant Commissioner of
Endowments, Berhampur in O.A. No. 6 of 2012 under section
41 of the Act and declared the petitioners as hereditary
sevayats-cum-Archaks of the deity and as per the schedule of
lands, the petitioners were allotted with the schedule land
involved in the writ petition. The copy of the judgment dated
17.11.2014 has been filed along with the additional affidavit as
Annexure-3.
Counter affidavit has not been filed by any of the
opposite parties in the writ petition. Copy of the writ petition
has not been served on the learned counsel for O.P. No.2
despite of order dated 21.08.2013. As the matter is pending
since long and the case had been dismissed for default on
17.04.2017 and was restored on 11.09.2017, we are not
inclined to adjourn the matter. In view of the nature of the
order we propose to pass, it is not necessary to wait for a
counter affidavit or hear the submissions of opp party No 2 and
3.
A perusal of order dated 17.11.2014 passed in O.A.
No.6 of 2012 reveals that it has been observed :
..."Admittedly the case deity institution is a
Public religious institution which has already been
declared by this Court in O.A. No.9 of 2003 U/S-41 of
the O.H.R.E.Act, 1951 on dt.9.2.2004 wherein the
O.P. No.2 has been declared as hereditary trustee of
the deity institution. The O.P. No.2 examined as
O.P.W.1 himself categorically submitted that the
petitioners are none other than Hereditary Sebayta-
cum-Archaks of the deity institution. So, from the
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above evidence, it is crystal clear that the case deity
institution is a public religious institution and the
petitioners are none other than the Hereditary
Sebayats-cum-Archaka of the case diety institution
along with its endorsements. So, the above issues
are answered in favour of the petitioners." ...
An interim order had been passed by this Court on
4.11.2010 directing that further measurement may be made
but the land should not be put to auction without leave of this
Court. As almost eleven years have elapsed, the earlier
assessment of price, is of no consequence at this stage and
fresh assessment/determination is necessary.
In the absence of Opp Parties No 2 and 3 , it is not
known if order dated 17.11.2014 passed in O.A No. 6 of 2012
still stands or has been set side by a higher Court / forum . As
the matter is being remitted back to Opp. Party No 2 to
examine the present market value of the land and redetermine
the upset price afresh, we think it proper that Opp Party No.2
will also consider the effect of order dated 17.11.2014 passed in
O.A No. 6 of 2012 if it still stands and whether it gives any
preferential right to the petitioners to buy the case land.
Needless to say that the Opp party No 2 shall also hear the Opp
party No 3 alongwith any other person who may be interested
in the land and will be affected by his order.
The writ petition is accordingly disposed of with the
above observations. Opp Party No. 2 shall complete the exercise
within a period of four months from the date of receipt of
certified copy, if there is no other legal impediment. We make it
clear that we have not expressed any opinion regarding the
claim of the petitioners for preferential right to purchase the
land which is to be put to auction. The petitioners shall appear
before the Opp party No 2, by the 10th of September 2021
alongwith a certified copy of this order and the documents they
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rely on in support of their case, which shall be considered in
accordance with law by the Opp. Party No 2 . If the petitioners
fail to appear before the Opp Party No 2 within the specified
time, they are not required to be heard by the Opp party No 2 .
Interim Order passed earlier stands vacated . The
writ application is accordingly disposed of.
Urgent certified copy be granted on proper
application.
(S.K. Mishra)
Judge
dutta
( Savitri Ratho)
Judge
