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Sunday, March 6, 2016

When the appeal was pending before this Court, by way of an application filed in July, 2015, Respondent Nos. 1 and 2 offered an amount of Rs.80 Lakhs, whereas the intervenor had offered an amount of Rs.1.68 crores. Having regard to the background of the litigation, having regard to the dire necessity for the Deity to dispose of the property, having regard to the fact that Respondent Nos. 1 and 2 have been in occupation of the property since 1956 and that they have constructed their houses in the property, we are of the view that it is in the interest of all concerned to put a quietus to the litigations between the State and Respondent Nos. 1 and 2 of the sale of the property under Section 19 of the Orissa Hindu Religious Endowment Act.After considering the suggestions made from all quarters and having regard to the offers made before this Court, having regard to the circle rate and market rate and having regard to more than five decades of the admitted occupancy by Respondent Nos. 1 and 2, we fix the rate at Rs. 2.75 crores for the entire property now occupied by Respondent Nos. 1 and 2.This amount shall be deposited by Respondent Nos.1 and 2 within a period of three months from today. On such deposit, whatever rights available to Respondent Nos.1 and 2 in respect of property under Section 19 of the Act shall be transferred to them.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 6122 OF 2008


      STATE OF ORISSA & ANR.                      Appellant(s)

                                VERSUS

      ABANI BALLAV DEY & ORS.                     Respondent(s)


                               J U D G M E N T

KURIAN, J.
1.    The application for intervention is dismissed.

2.    Appellant No. 1 - State of Orissa is aggrieved by the  impugned  order
dated 14.05.2008 passed by the High Court of Orissa in RSA No.  10  of  2002
and Misc. Case No. 65 of 2008.

3.    For the purpose of disposal of  this  appeal,  we  shall  extract  the
short impugned order as under :-

"The  appellants and respondent no. 2 have filed a petition under  Order  23
Rule 3 of the CPC for compromise stating therein that to cut short the  long
term litigation and for the benefit and improvement of the respondent no.  2
Religious Trust they want to compound the matter.   Previously  the  parties
had filed Misc. Case No.  189  of  2006  for  recording  compromise  in  the
appeal.  But the Tahasildar, Cuttack raised objection on the plea  that  the
property under litigation has high market value and the amount  contemplated
in compromise is very low.  Objection was also raised  by  the  Commissioner
of Endowments that in absence of the permission of the Commissioner  u/s  19
of the OHRE Act, the compromise cannot be effected as  the  compromise  will
create stitiban tenancy  in  favour  of  the  appellants.   The  prayer  for
compromise was  accordingly,  disallowed  for  want  of  permission  of  the
Commissioner of endowments u/s 19 of the OHRE Act.  The parties,  therefore,
filed the  present  petition  for  compromise  indicating  inter  alia  that
permission of the Commissioner of  endowments  has  been  obtained  for  the
compromise and the amount to be paid by the appellants has  been  raised  to
Rupees thirty lakhs.  Counter affidavit has been filed by  the  Commissioner
of Endowments wherein it is stated that Deputy  Commissioner  of  endowments
by successive letters dated 5.2.2008 and 31.3.2008 intimated the  respondent
No.2 that no permission can  be  accorded  for  compromise  in  the  greater
interest of the institution.  It is also indicated in the counter  affidavit
that present petition for compromise is not maintainable after the order  of
rejection in Misc. Case No. 189 of 2006.  Reply to  this  affidavit  of  the
Commissioner of Endowments has been filed by the respondent  no.  2  to  the
effect that the letters of  the  Deputy  Commissioner  of  Endowments  under
Annexures A & B are to be ignored as the Commissioner of Endowments in  Memo
No. 10864 dated 5.9.2007 granted permission to respondent no.  2  to  effect
compromise in the second appeal.

            In this regard, the appellants and respondent no. 2 rely on  the
order dated 28.4.1989 of the Commissioner of Endowments,  Orissa  passed  in
OA No. 171 of 1988-II under Section  19  of  the  Act,  Order  No.  7  dated
11.12.2006 of the Commissioner of Endowments in misc. Case No.  17  of  2005
and Memo No. 10864 dated 5.9.2007 of  the  office  of  the  Commissioner  of
Endowments,  Orissa.   On  the  other  hand,   learned   counsel   for   the
Commissioner of Endowments rely on Memo No. 1589  dated  5.2.2008  and  4369
dated  31.3.2008  issued  by  the  Deputy  Commissioner  of  Endowments   to
respondent no. 2.  In the order in A. No. 171of 1988 on the  prayer  of  the
respondent no. 2, the Commissioner of  Endowments  accorded  permission  for
sale of the lands of the religious institution fixing minimum  rate  at  Rs.
20,000/- per gunth for lands adjoining road and at the rate of Rs.  15,000/-
per gunth for other lands.  In order dated 11.12.2006 of Misc. Case  No.  17
of 2005 it is reflected that permission was sought for the  compromise,  but
because it was submitted that the matter does not come  within  the  purview
of section 19 of the OHRE Act, the misc. case was  dropped  and  the  matter
was left to be dealt with in management side.  In memo No. 10864  respondent
no.2 was permitted to enter into compromise in the second appeal, if  he  so
wants.  But thereafter, in Memo nos. 1589  dated  5.2.2008  and  4369  dated
13.3.2008 respondent no. 2 was  intimated  by  the  Deputy  Commissioner  of
Endowments that he cannot be permitted to enter into  a  compromise  in  the
greater  interest  of  the  institution.   All  these  documents  show  that
initially the Commissioner of Endowments  had  permitted  for  sale  of  the
lands  of  the  institution  for  rupees  seven  lakhs  approximately,   but
litigation crept in and no such sale could be  effected.   Now,  by  way  of
compromise respondent no. 2 is willing to create stitiban tenancy in  favour
of the appellants in respect of the same lands of religious  institution  in
exchange for a sum of Rs. 30,00,000/- to be paid by the  appellants  to  the
religious institution.  The  Commissioner  of  Endowments  has  also  passed
order and intimated the order to respondent no.2 that he can  enter  into  a
compromise.  The previous orders passed under section 19 of the Act and  the
present order permitting respondent no.2 to enter into compromise passed  by
the Commissioner of Endowments in substance amounts to accord of  permission
under section 19 of the OHRE Act.  Dr. Rath, learned counsel  appearing  for
Commissioner of Endowments, however, states that because the  money  aid  by
the appellants will  go  for  the  benefit  of  religious  institution,  the
parties may do well to raise the amount considering the fact that  the  suit
lands are now urban valuable lands.  After  this  submission  of  Dr.  Rath,
there was a discussion in open court and learned counsel for the  appellants
on  instruction  submitted  that  instead  of  rupees  thirty   lakhs,   the
appellants would pay rupees forty five lakhs and that  may  be  incorporated
in the terms of compromise.  A memo was also filed in this regard.


      Since the parties are willing to enter into  compromise  and  end  the
litigation and the Commissioner of Endowments has permitted  the  respondent
no. 1 to enter into such compromise and since  the  amount  offered  by  the
appellants is more than six and half times of the amount  initially  set  by
the Commissioner of Endowments, the prayer for  compromise  is  allowed  and
the appeal is disposed of on  compromise  according  to  the  terms  of  the
compromise.   The  compromise  petition  along  with  memo   enhancing   the
compromise amount from rupees thirty lakhs to rupees forty five  lakhs  will
form part of the decree.
      The appeal and misc. case are thus disposed of."

4.    It is the main contention of the State that the property of the  Deity
could not have been disposed of by way of a compromise  as  referred  to  in
the impugned order.  After having heard Mr. P. S. Patwalia,  learned  senior
counsel appearing for the  State  and  also  the  learned  counsel  for  the
respondents, on 14.01.2016, this Court passed the following order :-
"Having heard the learned Senior Counsel appearing for  the  appellants  and
also learned Senior Counsel for the respondents, we are of the view that  it
would be in the interest of all the parties, that the matter  is  considered
afresh by the Commissioner of Endowments in exercise of power under  Section
19 of the Orissa Hindu Religious Endowments Act, 1951.
      We Permit the Respondent No.3  herein  to  make  a  fresh  application
before the Commissioner within two weeks from today  and  the  Commissioner,
after hearing the appellant Nos. 1 and 2 as well  as  respondents,  consider
the application on merits and pass appropriate order within a period of  one
month thereafter.
      We make it clear that the orders already passed  by  the  Commissioner
of Endowments in the matter, shall not stand in the way of the  Commissioner
considering the matter afresh and passing appropriate orders.
      However, we make it clear that this order is passed without  prejudice
to the contentions raised by parties before this Court.
      Post after six weeks."

5.    The learned counsel appearing for the State today has  made  available
the order of the  Commissioner  of  Endowments,  Orissa,  Bhubaneswar  dated
24.02.2016.  According to the Endowment Commissioner also,  Respondent  Nos.
1 and 2 have long been in possession of the property.   The  Deity  and  the
Math are in a neglected position and for  want  of  funds,  no  improvements
could be made.  The Deity is badly in need of money  and  having  regard  to
the background of litigation,  the  property  needs  to  be,  in  any  case,
disposed of.  We shall extract the relevant consideration of  the  Endowment
Commissioner :-
"7..........The case land is located in urban area in one patch.   The  case
land is situated by the side of main road  which  runs  from  Biju  Pattnaik
Chhak to Deula Sahi of Cuttack Town.  Plot No.  321  has  been  recorded  as
Jalasaya kisam, but major part of that plot is filled with sand  and  earth.
Permission for sale of the case land was accorded in O.A.No.  171/1988  vide
order  dated  28.02.1989,  but  the  same  could  not  be  sold  within  the
stipulated period  of  one  year  due  to  several  litigations.   The  case
deity/institution is not getting any  income  from  the  case  land  due  to
number of litigations.  In case of sale of the case  land,  the  deity  will
get a considerable amount by way of interest from long  term  fixed  deposit
of the sale proceeds.  The report of the concerned Inspector  of  Endowments
as well as the Bench mark valuation of  the  case  land  obtained  from  the
District Sub-Registrar, Cuttack indicate that the cost of plot  no.  317  of
kisam Gharabari is Rs. 4  crores  forty  lakhs  (Rupees  four  crores  forty
lakhs) per acre.  The cost of plot No. 318 of kisam Bagayat is Rs. 2  crores
75 lakhs (Rupees two crores seventy five lakhs) per acre.  The cost of  plot
No. 320 of kisam Gharabari is Rs. 2  crores  75  lakhs  (Rupees  two  crores
seventy five lakhs) per acre.  The cost of plot No. 321  of  kisam  Jalasaya
is Rs. 2 crores 75 lakhs (Rupees two crores seventy five lakhs) per acre.

8.    Thus, I found that  the  case  land  belongs  to  the  deity  Sri  Sri
Raghunath Jew, bije Matha Sahi, Tulasipur of Cuttack Town under Bidanasi  P.
S. marfat Mahant Bijoy Narayan Ramanuja Das which has been reflected in  the
R.O.R.  vide  Ext.  1  produced  by  the   petitioners.    Admittedly,   the
deity/institution is public in nature.   So,  necessary  permission/sanction
order U/S. 19 of the O.H.R.E. Act, 1951 is required to sell  the  case  land
of the  deity  for  any  legal  necessity.   The  report  of  the  concerned
Inspector of Endowments and the R.O.R. of the case land and  the  management
file available in the Endowment Office indicate that  Mahant  Bijoy  Narayan
Ramanuja Das is the Hereditary Trustee of the deity/institution and as  such
he has filed the case U/s 19 of the O.H.R.E. Act, 1951 before the  Court  of
the Commissioner of Endowments, Odisha, Bhubaneswar in  order  to  sell  the
landed properties of the deity/institution for  legal  necessity,  which  is
beneficial for the deity/institution.

9.    As regards the legal necessity, I found that the  petitioner  Math  is
an old institution.  During my tour I have  seen  the  deity/institution  as
well as the case land located at Tulasipur of Cuttack Town.  The Temple  and
the surrounding  pucca  houses  of  the  institution  are  now  standing  in
dilapidated condition which require major  repair/renovation  and  for  that
purpose huge amount of money is  required.   The  deity/institution  has  no
funds  to  meet  the  above  expenses.   The  only  way  is  open   to   the
deity/institution to sell some  landed  properties.   The  deity/institution
has some cultivable lands which are now under  the  possession  of  the  the
institution.  But the case land is now under  the  possession  of  the  O.Ps
since long and the institution is not getting anything from the  case  land.
It will be very expensive on the part of the institution to evict  the  O.Ps
from the case land through litigations. Therefore, in my opinion it will  be
beneficial for the deity/institution to sell the case land in order to  meet
the above legal necessity of the deity/institution.  The O.Ps No.  1  and  2
are now staying over in the  case  land  with  their  family  members  after
constructing their house over it. The O.Ps are  now  ready  and  willing  to
purchase the case land at the reasonable rate fixed by this Court.   If  the
case  lands  are  sold  away  and  the  sale  proceeds  deposited   in   any
Nationalised   Bank   under   Long   Term   Fixed   deposit   scheme,    the
deity/institution will definitely get substantial income  annually  in  safe
of interest.  Hence, I feel that it is necessary to sell away the case  land
for   the   above   legal   necessity   which   is   beneficial   for    the
deity/institution.

6.    It  is  seen  from  the  order  at  Paragraph  5  that  prior  to  the
consideration of the matter, the Endowment Commissioner had given  a  public
notice and that, "In spite of publication of notice, no objection  has  been
received from any corner."

7.    The Endowment Commissioner having taken note  of  the  fact  that  the
circle rate available could be less than the  actual  market  price,  passed
the order for auctioning the property with upset price at Rs. 5  crores  per
acre for the first item, Rs. 4 crores per acre for the second item  and  Rs.
3 crores per acre for the third item.

8.    It is seen from the order passed by the  Endowment  Commissioner  that
even if the property is put to auction, it is likely to ensue a  long  drawn
litigation in the matter of eviction of the present occupants.

9.    Mr. Guru Krishna Kumar, learned senior  counsel,  on  instruction  and
after referring to the records, submits that Respondent Nos. 1  and  2  have
been in occupation of the property since 1956.

10.   The offer originally made by Respondent Nos. 1 and 2 before  the  High
Court was for Rs. 30 Lakhs, which was enhanced to Rs. 45 Lakhs  and  it  was
on Rs.45 Lakhs, the compromise was entered into and the appeal was  disposed
of by the High Court by the impugned Judgment in 2008.

11.   When  the  appeal  was  pending  before  this  Court,  by  way  of  an
application filed in July, 2015, Respondent Nos. 1 and 2 offered  an  amount
of Rs.80 Lakhs, whereas the intervenor had  offered  an  amount  of  Rs.1.68
crores.


12.   Having regard to the background of the litigation,  having  regard  to
the dire necessity for the Deity to dispose of the property,  having  regard
to the fact that Respondent Nos. 1 and 2 have  been  in  occupation  of  the
property since 1956 and that they  have  constructed  their  houses  in  the
property, we are of the view that it is in the interest of all concerned  to
put a quietus to the litigations between the State  and  Respondent  Nos.  1
and 2 of the sale of the property under  Section  19  of  the  Orissa  Hindu
Religious Endowment Act.

13.   After considering the suggestions made from all  quarters  and  having
regard to the offers made before this Court, having  regard  to  the  circle
rate and market rate and having regard to more  than  five  decades  of  the
admitted occupancy by Respondent Nos. 1 and 2, we fix the rate at  Rs.  2.75
crores for the entire property now occupied by Respondent Nos. 1 and 2.

14.   This amount shall be deposited by Respondent  Nos.1  and  2  within  a
period of three  months  from  today.   On  such  deposit,  whatever  rights
available to Respondent Nos.1 and 2 in respect of property under Section  19
of the Act shall be transferred to them.

15.   In view of the above observations and directions,  this  civil  appeal
is disposed of with no order as to costs.

16.   We make it  clear  that  this  Judgment  is  passed  in  the  peculiar
background of the case we have extracted above and the  same  shall  not  be
treated as a precedent.

                                                   .......................J.
                                                           [ KURIAN JOSEPH ]


                                                   .......................J.
                                                   [ ROHINTON FALI NARIMAN ]

      New Delhi;
      March 02, 2016.

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