Orissa High Court
Shree Nilamadhab Jew Thakur Bije vs Principal Secy. To Govt. Of Odisha on 19 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.37177 of 2022
(Through Hybrid mode)
Shree Nilamadhab Jew Thakur Bije .... Petitioners
Nijagruha, Cuttack and another
Mr. Basudev Barik, Advocate
Mr. Gopal Prasad Jena, Advocate
-versus-
Principal Secy. to Govt. of Odisha, .... Opposite Parties
Law Dept., BBSR and another
Ms. P. Naidu, Advocate
Mr. A. K. Sharma,AGA
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SANJAY KUMAR MISHRA
ORDER
19.04.2023
Order No.
01. 1. Mr. Jena, learned advocate appears on behalf of petitioners. He
submits, impugned is judgment dated 8th March, 2022 passed by the
Commissioner rejecting his clients' application for permission under
section 19-A in Odisha Hindu Religious Endowments Act, 1951.
2. He draws attention to a passage in the judgment, extracted and
reproduced below.
// 2 //
"... ... ... But now the moot question which arises for
determination is as to whether the transaction of
alienation of the schedule land in favour of the
Petitioners vide Regd. Sale Deed marked Ext.9 is lawful
or not. The provisions U/s 19-A of the OHRE Act, 1951
has been inserted to the original Act in the year 1989.
Hence, by the time Regd. Sale Deed marked Ext.9 was
executed on 19.2.96 the provision U/s 19-A of the OHRE
Act was already in force. The Regd. Sale Deed marked
Ext.9 itself shows the deity Sri Nilamadhab Jew Thakur
bije Nijagruha to be the Vendor of the Documents through
successors of the marfatdar and one of the Petitioners
namely Rabindra Behera to be the only Vendee. On a
perusal of the recital of Ext.9 it is found that there is
mention that the Vendor of that document marked Ext.9
was in need of money to defray the amount spent for
construction of the house for the deity and also for
purchase of some other lands for the deity. So it is
apparent that the sale marked Ext.9 was for the interest
and benefit of the deity in question but there is no
mention or proof to show that when the Sale Deed
marked Ext.9 was executed and registered in respect of
the schedule land any "No Objection Certificate" as
required U/s. 19-A of the OHRE Act has been obtained
by the Vendor. The said sale transaction being for
consideration of Rs.18,000/- (Rupees Eighteen thousand)
it was compulsorily registrable U/s. 17 of the Registration
Act, 1908. In such situation either the Vendor to transfer
the schedule land in the name of the deity was to obtain
// 3 //
sanction from the Commissioner of Endowments, Odisha
as required U/s 19 of the OHRE Act, 1951 and if such
sanction U/s 19 was not applicable then to ask the
Commissioner of Endowments for issuance of a "No
Objection Certificate" in favour of the Vendor to alienate
the schedule land which stands recorded in the name of
the deity in terms of Section 19-A of the OHRE Act, but
unfortunately neither any sanction U/s 19 nor any "No
Objection Certificate" U/S 19-A of the OHRE Act, 1951
have been obtained during transaction vide Ext.9 on
19.2.96 thereby making the transaction illegal and
inoperative in law.... ... ..."
(emphasis supplied)
3. He relies on our judgment dated 12th January, 2023 in
WP(C) no.21091 of 2018 (Tamala Das vs. State of Odisha and
others), paragraph 12. The paragraph is reproduced below.
"12. There is another aspect of the controversy in the
case. Petitioner's registered deed dated 12th August,
1992 is a duly executed registered deed of conveyance.
By it was sold schedule property for consideration
Rs.25,560/- and petitioner placed in peaceful possession
of all the purchased property. Vendor was marfatdar of
the deity. As aforesaid, the deed mentioned description
of vendor deity as being both 'Nijagaon' and
'Nijagruha'. View taken in Sumit (supra) was that until
procedure is laid down by the rules and form is
// 4 //
prescribed for grant of 'No Objection' certificate, the
registering authority cannot insist upon production
thereof issued by the Commissioner or the delegate,
under section 19- A. Petitioner's submission that
pursuant to this view there was insertion by
amendment, rule 4A could not be rebutted. In the
circumstances, the view was acted upon. The situation
gave sanctity to petitioner's purchase by sale deed
dated 12th August, 1992, executed and registered prior
to 28th March, 2012, date from which the rule was
given effect. Thus, petitioner's application to transfer
her purchased land cannot be said to belong to the deity,
as duly conveyed away on 12th August, 1992. In acting
as required under sub-rule (3) in rule 4A the
Commissioner must be confined to prima facie finding
regarding whether 'No Objection' certificate can be
issued. It is not a procedure for pronouncing validity of
title documents presented for the purpose."
(emphasis supplied)
4. Ms. Naidu, learned advocate appears on behalf of the
Commissioner and submits, there are factual aspects also involved. In
fairness she submits, the application be restored to the Commissioner
for reconsideration. Mr. Sharma, learned advocate, Additional
Government Advocate appears on behalf of opposite party no.1 and
adopts submission made by Ms. Naidu.
// 5 //
5. We had taken view in Tamala Das (supra) in light of view
taken earlier by a learned single Judge in Sumit vs. State, reported in
2012 (I) OLR 922. Our judgment covers petitioners' grievance in this
writ petition. Accordingly, impugned judgment is set aside and
quashed. The application for permission is restored to the
Commissioner, to be considered and deal with expeditiously, within
four weeks from date.
6. The writ petition is dissposed of.
( Arindam Sinha )
Judge
( S. K. Mishra )
Judge
Prasant
