Orissa High Court
Sri Dadhibaman Jew Bije Nijagaon vs Commissioner Of Endowments on 29 April, 2025
Bench: B.P. Routray, Chittaranjan Dash
Corrected
Signature Not Verified
Digitally Signed
Signed by: MANAS KUMAR PANDA
Designation: Personal Assistant
Reason: Authentication
Location: OHC, Cuttack
Date: 06-May-2025 13:48:18
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.956 of 2025
(Under Article 226 and 227 of the Constitution of India)
Sri Dadhibaman Jew Bije Nijagaon
and Another .... Petitioners
-versus-
Commissioner of Endowments, Odisha .... Opposite Party
Advocate(s) appeared in this case:-
For Petitioners : Mr. Gopinath Mishra, Advocate
For Opposite Party : Ms. P. Naidu, Advocate
CORAM: JUSTICE B.P. ROUTRAY
JUSTICE CHITTARANJAN DASH
JUDGMENT
29th April, 2025
By The Bench.
1. Heard Mr. G. Mishra, learned counsel for the Petitioners and
Ms. P. Naidu, learned counsel for Endowment authorities.
2. The order of refusal of learned Commissioner of Endowments,
Odisha dated 28th October, 2024 to grant 'No Objection Certificate'
in terms of Section 19-A of the Odisha Hindu Religious
Endowments Act (OHRE Act) is subject matter of challenge in
present writ petition.
Designation: Personal Assistant
3. The admitted facts remain that the property in question was
purchased by the Petitioner vide registered sale deed (RSD) No.6133
dated 12th August, 1992 from the Deity Shri Dadhibamana Dev, Bije
Nijagaon-Nijagruha, Marfat Sri Nabakishore Sundara and
Chandramani Sundara, though the record of right (RoR) reflects
recording of the case land in the name of Shri Dadhibaman Jew, Bije
Nijagaon, marfat Gautam Sundara, Naba Kishore Sundara and Braja
Bandhu Sundara. It is true that the RSD dated 12th August, 1992
executed in favour of the Petitioner remains undisputed and the
Petitioner did not take any step for mutation of the property in his
name pursuant to the registered sale deed. The RoR continued to be
in the name of the Deity till date. In the meantime Rule 4-A of the
Odisha Hindu Religious Endowments Rules came into force with
effect from 28th March, 2012 vide notification dated 23rd June, 2012
and prior to that Section 19-A of the OHRE Act was inserted vide
Odisha Amendment Act No.22 of 1989 which remains as it is
without the prescribed rules, i.e. Rule 4-A, till 28th march 2012.
4. According to the Petitioner, when he intended to resale the
property for his legal necessity, an objection was raised requiring
permission under Section 19-A of the OHRE Act for the reason that
the record of rights denotes the name of the Deity in respect of the
case land. When the Petitioner applied for permission under Section
19-A to grant 'No Objection Certificate', the same was refused vide
impugned order dated 28th October, 2024 of the Commissioner on
the ground that the Petitioner has failed to establish that the Deity is
not a public religious institution.
Designation: Personal Assistant
5. Mr. Mishra submits that another portion from the same patch of
land owned by same Deity purchased by another person along with
the Petitioner in the year 1992 was sold pursuant to the direction of
this court dated 12th January 2023 passed in WP(C) No.21091 of
2018 (Smt. Tamala Das v. State of Odisha and Others), wherein this
court have held that said Petitioner is entitled for issuance of 'No
Objection Certificate' in terms of Rule 4-A. The relevant portions of
said judgment of this court dated 12th January, 2023 are reproduced
below:-
"8. On behalf of the Commissioner there is contention that though
record in the Record of Rights is a rebuttable presumption
nevertheless, the entry in appropriate column is 'Nijagaon'
implying worship of the deity by the villagers, making it a public
deity. This was what weighed with the Commissioner in making
impugned order. On the other hand we have, the Registering Officer
duly appointed under the Registration Act, 16 of 1908 had
registered said sale deed dated 12th August, 1992, sometime after
the inserted by Odisha Amendment Act no.22 of 1989 provision of
section 19-A. We looked at official translation of the deed and
found that there is description of the deity being vendor therein both
as 'Nijagaon' as well as 'Nijagruha'. It is clear that the registering
authority, on having had the sale deed presented for registration,
found that the deity was private but the villagers permitted to also
participate in worship. We infer as such since, the enquiry report
was in favour of petitioner. By Sumit (supra) it was said that there
was no procedure for applying for permission. Here we reproduce
paragraph 23 from the judgment.
23. As this Court has already found that the Rules are
silent with regard to the procedure to be followed by the
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Commissioner in case an application is made under
Section 19-A of the Act, and no specific form is prescribed
as mentioned in the section for granting a "No Objection
Certificate, this Court is of the affirmative view that until
such procedure is laid down in the Rules by way of
amendment and the form is prescribed for grant of "No
Objection Certificate', the Registering Authority cannot
insist upon production of a "No Objection Certificate"
from the Commissioner under Section 19-A of the Act and,
therefore, the said Section 19-A cannot be operated in its
present form.
Xxx .... Xxx .... Xx ....
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
Commissioner to grant 'No Objection' certificate in spite of
objection filed.
Designation: Personal Assistant
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 prescribed for grant of 'No Objection' certificate,
the registering authority cannot insist upon production thereof
issued by the Commissioner or the delegate, under section 19A.
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.
13. We are satisfied that petitioner is entitled to have registration
of deed on issuance of 'No Objection' certificate per procedure
under rule 4A for registration to be effected in compliance of
section 19-A."
It is thus submitted by Mr. Mishra, relying on the aforesaid
ruling, that the Commissioner is bound to grant 'No objection' in
respect of the land in question in favour of the petitioner.
Designation: Personal Assistant
6. Ms. Naidu on the other hand submits that in absence of any
mention of Nijagruha in the RoR, insertion of the same in the RSD
cannot be counted to the benefit of the Petitioner to substantiate his
case that the Deity in question is a private one. In absence of any
declaration in terms of Section 41 of the OHRE Act, at this stage
only for the reason that the Bijesthali of the Deity is mentioned as
Nijagruha in the RSD would not entitle the Petitioner to get 'No
Objection Certificate' treating the Deity as private one. It is further
submitted by Ms. Naidu that to avoid legal sanction for sale of the
property it is deliberately mentioned in the sale deed that the
Bijesthali is at Nijagruha. But we do not find force on such
submission of Ms. Naidu since no objection was raised to that effect
either at appropriate point of time or even before the Commissioner.
7. It is true that to declare the Deity whether private or public,
certain guiding factors have to be looked into. As held in the case of
Radhakanta Deb and another v. Commissioner of Hindu Religious
Endowments Odisha, (1981) 2 SCC 226 the guidelines prescribed
are as follows:-
"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
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provision for a scheme to be framed by associating the members of
the public at large;
3) Whether, 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 descendents, 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) Whether the evidence shows that the founder of the
endowment did not make 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."
8. As stated above, in the case at hand, it is admitted that the
Petitioner is the purchaser of the land in question in the year 1992
from the Deity through the Marfatdars. The registered sale deed
dated 12th August, 1992 still remains valid being unquestioned till
date. Once the sale dated 12th August, 1992 made in favour of the
Petitioner or execution of the RSD is treated valid, then the question
of permission to resale the same by the Petitioner is not required. It
is for the reason that the sale in favour of the Petitioner was effected
since August, 1992 when Rule 4-A of the Odisha Hindu Religious
Endowments Rules were not in force, meaning thereby that there
was no restriction for sale of the land belonging to a private Deity.
The Bijesthala of the Deity as mentioned at Nijagruha itself indicates
the fact of acceptance of the deity as private one for the purpose of
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sale of land in question, and the same being unquestioned at any
point of time, the permission to get no objection certificate under
Section 19-A is not required.
9. The other aspect is that had the Petitioner been applied for
mutation of the case land in his favour pursuant to the RSD dated
12th August, 1992 he would not have required any no objection
certificate for reselling the land. So when it is admitted at present
that the validity of sale deed dated 12th August, 1992 cannot be
questioned and the recitals made therein retains its sanctity till date,
the permission required under 19-A read with Rule 4-A ought to
have been granted in favour of the Petitioner by the Commissioner.
As such we are inclined to set aside the impugned order and further
direct the Commissioner of Endowments to issue 'No Objection
Certificate' in favour of the Petitioner in terms of Section 19-A.
10. With aforesaid observation and direction the writ petition is
disposed of.
(B.P. Routray)
Judge
(Chittaranjan Dash)
Judge
M..K. Panda, P.A.
