Orissa High Court
Himanshu Nayak vs State Of Odisha & Others ........... ... on 25 July, 2025
ORISSA HIGH COURT : CUTTACK
WP(C) No. 16117 of 2025
An application under Articles 226 & 227 of the Constitution of
India.
***
Himanshu Nayak ............. Petitioner
-VERSUS-
State of Odisha & Others ........... Opposite Parties
Counsel appeared for the parties:
For the Petitioner : Mr. Budhiram Das,Advocate.
For the Opposite Parties : Ms. S.Nayak, A.S.C.
(for the O.P. Nos.1 to 3)
P R E S E N T:
HONOURABLE
MR. JUSTICE ANANDA CHANDRA BEHERA
Date of Hearing: 10.07.2025 :: Date of Judgment : 25.07.2025
J UDGMENT
ANANDA CHANDRA BEHERA, J.--
1. This writ petition under Articles 226 and 227 of the
Constitution of India, 1950 has been filed by the Petitioner
against the Opposite Parties praying for directing the District
Sub-Registrar, Jagatsinghpur (O.P. No.3) to register the deed for
sale vide Annexure-5, which was refused to register by the O.P.
No.3 assigning three grounds in Annexure-6.
2. The said three grounds/reasons assigned by the O.P. No.3
for non-registration of the deed for sale (Annexure-5) in
Annexure-6 are as follows:-
(i) When, Himanshu Nayak as a registered power
of attorney holder of the vendor is executing the
deed for sale, but, he (power of attorney holder) has
not satisfied that, his principal had not any
intention to revoke such power.
(ii) As per the provisions of the Indian Trust Act,
1882 a Trust property can be sold, only if the sale
proceeds is required for the Trust and the same
shall be used only for the benefit of the trust and
the same can only be done when there is clear cut
provision in the bye-law of the Trust and the Board
of Director of the trust shall pass resolution
unanimously for sell of such property. If, there is
no unanimity and if there is any legal ambiguity as
to the functioning of the Board of Directors without
resolving such issue in Court of Law, the resolution
cannot be passed for sale of such property.
(iii) When, the property of a public charitable
Trust is to be sold, the concurrence of the State
Government is required as per Section 57(A) and
57(B) of the OLR Act, 1960, wherein, the collector
of the District is the permanent member in
representing the State Government in the Board of
Director of the Trust, without whose concurrence a
resolution cannot be treated as valid for its
operation to sell the property of the Trust.
3. The case of the Petitioner in this writ petition is that,
Believers Church India is the owner of the properties covered
under the deed for sale vide Annexure-5. The consolidation R.o.R.
of the properties covered under the said deed for sale (Annexure-
5) stands in the name of the Believers Church India Marfat
Managing Trust Bishop Dr.Samuel Mathew. The Believers
Church India is a private trust and the same has been registered
as per The Trust Act vide Annexure-3.
As per the resolution dated 18.03.2022 (Annexure-4), in the
meeting of the Board of Trustees of the Believers Church India
trust, it was decided for selling of the properties of the trust
covered under the deed for sale (Annexure-5) through its Power of
Attorney Holder i.e. the Petitioner (Himanshu Nayak).
4. On the basis of such resolution vide Annexure-4, a special
Power of Attorney was executed and registered by the Believers
Church India through its Managing trust Bishop Dr.Samuel
Mathew in favour of the Petitioner vide registered Power of
Attorney No.107 dated 19.03.2022 (Annexure-1) authorizing the
Petitioner (Himanshu Nayak) to sell the properties of the Believers
Church India in Mouja Nuagaon on behalf of the Believers
Church India.
Thereafter, the Believers Church India executed the deed for
sale of the properties vide Plots Nos.1279 and 1280 under Khata
Nos.58/4 and 528/64 in Mouja Nuagaon through its registered
Power of Attorney Holder i.e. the Petitioner Himanshu Nayak in
favour of the O.P. Nos.4 to 9 and presented that deed for sale
(Annexure-5) before the District Sub-Registrar, Jagatsinghpur
(O.P. No.3) for its registration, but, the O.P. No.3 refused to
register that deed for sale assigning three grounds as indicated
above in Annexure-6 and communicated the same to the
Petitioner through letter No.3007 dated 15.07.2024.
5. On being dissatisfied with the aforesaid grounds in
Annexure-6 for refusal of registration of the deed for sale vide
Annexure-5 by the O.P. No.3, the Petitioner filed this writ petition
under Articles 226 and 227 of the Constitution of India praying
for directing the O.P. No.3 to register the deed for sale vide
Annexure-5 holding the above grounds/reasons for refusal of
registration in Annexure-6 assigned by the O.P. No.3 as illegal.
6. I have already heard from the learned counsel for the
Petitioner and the learned Additional Standing Counsel for the
O.P. Nos.1 to 3.
7. The legality, sustainability and justifiability of the grounds
indicated above in Annexure-6 by the O.P. No.3 for the refusal of
registration to the deed for sale (Annexure-5) presented by the
Petitioner is required to be discussed and analyzed serially and
chronologically one after another hereunder.
8. So far as the first ground for refusal to register the deed for
sale by the O.P. No.3 as per Annexure-6 i.e. when, Himanshu
Nayak as a registered power of attorney holder of the vendor is
executing the deed for sale, but, he (power of attorney holder) has
not satisfied that, his principal had not any intention to revoke
such poweris concerned;
Sub-Clause 1(a) of Section 33 of The Registration Act
provides that, when, a deed for sale is presented for registration
on being executed through its Power of Attorney holder, if, the
principal at the time of executing the Power of Attorney resides in
any part of India, in which, this Act is for the time being force, a
Power of Attorney executed before and authenticated by the
registrar or sub-registrar within whose District or Sub-District
the principal resides, the registrar or sub-registrar can act upon
the same for registration.
9. Here in this matter at hand, as per the Annexure-1 , the
Power of Attorney was registered before the Sub-Registrar in the
State of Kerala, where, the Managing Trustee of Believers Church
India i.e. Bishop Dr. Samuel Mathew is residing. For which, there
was no impediment under law to accept the deed for sale vide
Annexure-5 presented by the Power of Attorney Holder of the
seller i.e. Believers Church India without calling for the principal
of that Power of Attorney. Because, the same is fulfilling all the
criterias of Sub-Clause 1(a) of Section 33 of The Registration Act,
1908.
10. On this Aspect the propositions of law has already been
clarified in the ratio of the following decisions:-
(i) In a case between R.Pannerselvam Vrs. A.Subramanian
and another reported in 2009 (3) Civ.L.T. 441 (Madras) that,
executing the registered sale deed by a power of
attorney in favour of a purchaser, there should necessarily be
a registered power deed.
(ii) In a case between Cherryl Ann Joy Vrs. Sub-Registrar,
Sub Registrar Office, Udumbanchola reported in 2019 (I)
CCC 171 (Kerala) that,
SRO can act upon power of attorney, only, if it is
registered in terms of provisions mentioned/contained in
Registration Act.
(iii) In a case between Harmohini Sarna and others Vrs.
Govt. of NCT of Delhi reported in 2019 (II) Civ.C.C.(Delhi)
247 that,
power of attorney for registration of property
situated outside jurisdiction, principal can register a power of
attorney at a place where he resides.
(iv) In a case between Ravindra Kumar Vrs. State of U.P.
and others reported in 2021 (1) Civ.C.C. (Allahabad) 103
(DB) in Para No.25 that,
presentation of document for registration. Power of
attorney holder can execute a document as agent for someone
else and present the document for registration and get it
registered.
11. When, the registered deed of Power of Attorney (Annexure-1)
in favour of the Petitioner has fulfilled all the criterias of Sub-
Clause 1(a) of Section 33 on the basis of its registration before the
Sub-Registrar, within whose district the principal i.e. Bishop Dr.
Samuel Mathew resides, then at this juncture, in view of the
principles of law enunciated in the ratio of the above decisions,
the first ground of refusal of registration as per Annexure-6 by
the O.P. No.3 cannot be held as legal.
12. So far as the second ground for refusal of registration of
deed for sale i.e. as per the provisions of the Indian Trust Act,
1882 a Trust property can be sold, only if the sale proceeds is
required for the Trust and the same shall be used only for the
benefit of the trust and the same can only be done when there is
clear cut provision in the bye-law of the Trust and the Board of
Director of the trust shall pass resolution unanimously for sell of
such property. If, there is no unanimity and if there is any legal
ambiguity as to the functioning of the Board of Directors without
resolving such issue in Court of Law, the resolution cannot be
passed for sale of such property is concerned;
when, as per the trust deed and resolution vide Annexure-3
and 4, the deed for sale was executed and presented before the
O.P. No.3 for registration, then, without asking the Petitioner for
production of the Annexure-3 and 4 and without taking into
account the Annexure-3 and 4, the general and omnibus
observations of the O.P. No.3 in the ground No.2 of Annexure-6
on the basis of surmises and conjunctures that, if there is no
unanimity and if, there is any legal ambiguity as to the
functioning of the Board of Directors without resolving such issue
in Court of law, the resolution for sale cannot be passed is
unsustainable under law. Because, the said observations of the
O.P. No.3 is imaginary in nature.
13. So far as the third ground for refusal of registration of deed
for sale i.e. when, the property of a public charitable Trust is to
be sold, the concurrence of the State Government is required as
per Section 57(A) and 57(B) of the OLR Act, 1960, wherein, the
collector of the District is the permanent member in representing
the State Government in the Board of Director of the Trust,
without whose concurrence a resolution cannot be treated as
valid for its operation to sell the property of the Trust is
concerned;
It is the settled propositions of law that,
When, the trust deed explicitly empowers the trustees to
sell the trust property through a resolution by the Board
of Trustees, in that case, the trust properties can be sold
without the permission of the Court as well as the
Government.
14. On this Aspect the propositions of law has already been
clarified in the ratio of the following decision:-
(i) In a case between Asstt. Commissioner, Devasthan
Deptt., Udaipur Vrs. Balwant Singh and others reported in
1997 Supreme (Raj) 971 that,
when the instrument itself provides that, the trustees
could sell the property, then, permission from any authority to
sell the same is not required.
15. It reveals from Annexure-4 that, resolution was passed by
the Board of Trustees for selling the properties of the trust i.e.
the Believer Church India covered under the deed for sale vide
Annexure-5.
16. Therefore, by applying the principles of law enunciated in
the ratio of the aforesaid decision, it is held that, the above
ground No.3 of Annexure-6 by the O.P. No.3 for the refusal to
register the deed for sale vide Annexure-5 is also not legal under
law.
17. As per the discussions and observations made above, none
of the grounds out of three indicated in Annexure-6 by the
District Sub-Registrar, Jagatsinghpur (O.P. No.3) for the refusal
to register the deed for sale vide Annexure-5 are sustainable
under law. So, there is no impediment under law to allow this
writ petition filed by the Petitioner.
For which, the writ petition filed by the Petitioner is to be
allowed.
18. In result, the writ petition filed by the Petitioner is allowed
on contest.
19. The Annexure-6 issued by the O.P. No.3 stating the grounds
of refusal to register the deed for sale (Annexure-5) is quashed.
20. The District Sub-Registrar, Jagatsinghpur (O.P. No.3) is
directed to receive the deed for sale (Annexure-5), if, presented by
the Petitioner for its registration annexing the certified copy of
this judgment and to act upon the same for its registration as per
the Registration Act, 1908 and the Orissa Registration Rules,
1988 and on its registration, the O.P. No.3 shall return that
registered sale deed to the Petitioner within three days complying
all the rules and formalities of Section 100 of the Orissa
Registration Rules, 1988 and Notification No.2915 dated
02.08.2017 issued by IGR of Odisha.
21. As such, the writ petition is disposed of finally.
(ANANDA CHANDRA BEHERA)
JUDGE
Signature High
NotCourt
Verified
of Orissa, Cuttack
Digitally Signed 25.07.2025// Binayak Sahoo
Signed by: BINAYAK SAHOO
Jr. Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 27-Jul-2025 14:07:21
