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Judgment
M.M. Das, J.—As all the aforementioned writ petitions involve similar question of law and fact, they were heard together and are being disposed of by this common Judgment.
Land measuring Ac. 6.693 in nineteen different plots situated in mouza Krushna Chandrapur under Khata No. 651 in the District of Gajapati belonged to Shree Radhakanta Mahaprabhu Bije Bada Radhakanta Math of Parallakhemundi. The said deity Shree Shree Radhakanta Mahaprabhu being a public deity, for sale of the above properties for the benefit of the deity, an application u/s 19 of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter referred to as ''the Act'') was made by the Executive Officer before the Commissioner of Hindu Religious Endowments, Orissa, Bhubaneswar and the said application was registered as O.A. No. 111 of 1998(II). By order dated 8.8.2001 under Annexure-1, the Commissioner of Endowments after causing an enquiry allowed the petition granting permission for sale of the aforementioned land subject to the following conditions:
(1) That the sale shall be effected by way of public auction in favour of the highest bidder and the up-set price for auction shall be fixed at Rs. 60,000/-.
(2) The opposite parties 1 to 4 in the said Original Application being in cultivating possession over the land in question.
(3) If the said opposite parties or any of them match the highest bid, they would be given preference and they were at liberty to participate in the said auction sale.
(4) The auction sale was to be advertised at least in one Oriya Newspaper having wide circulation in the locality and by affixture in the notice board of the Math and also by beat of drums in the locality at least fifteen days before the date fixed for auction.
(5) The auction shall be conducted in presence of the Divisional Inspector of Endowments, Berhampur within six months from the date of the said order.
(6) The sale deed/deeds in favour of the successful bidder/ bidders will be registered in the office of the District Registrar, Paralakhemundi and the sale proceeds shall be kept in long term fixed deposit in the name of the deity in any Nationalised Bank pledged in favour of the Commissioner of Endowments, Orissa, Bhubaneswar.
(7) The cost of the registration of the sale deed shall be borne by the purchaser/purchasers.
It appears that after the aforesaid order was passed permitting to sell the land by public auction on compliance of the conditions imposed by the Commissioner, the notice for auction was published in Oriya daily The Sambad'' dated 1.12.2001 in it Jeypore Edition. As per the direction of the Commissioner, notice of the auction sale was also affixed in the notice board and proclaimed by beat of drums. The date of auction was fixed to 18.12.2001 at 10.00 A.M. It appears that the bids being knocked down in favour of the private opposite parties, being the highest bidders, sale of the respective plots of land for which the said opposite parties offered their bids was made in their favour.
W.P.(C) No. 6044 of 2003 has been filed by one Sri Yedla Narsimhulu. Prayer in the said writ petition has been made for quashing the process of auction sale conducted by opposite party No. 3 therein i.e., Executive Officer of Shree Shree Radhakanta Mahaprabhu and for setting aside the sale deeds under Annexure-2 series which were executed in favour of the opposite parties 4 to 7 in the said writ petition.
W.P.(C) No. 6799 of 2003 has been filed by one Narendra Swalsingh in the nature of Public Interest Litigation. The prayer made in the said petition is same as made in W.P.(C) No. 6044 of 2003 and W.P.(C) No. 8890 of 2003 has been filed by one Smt. Yedla Saraswati praying for similar relief.
In W.P.(C) No. 4490 of 2004 filed by one Sasmita Dash and twenty three others, the petitioners claim to have entered into agreements for sale with the successful bidders in the auction sale and Petitioner Nos./1 and 2, pursuant to the sale agreement have purchased portions of the land in question under two registered sale deeds annexed as Annexures-5 and 6 to the said writ petition. On the petitioners claim to have paid the full consideration money to the successful bidders, prayer in the said writ petition is made for declaring the sale deeds executed in favour of the successful bidders and the agreements to sell executed in favour of the petitioners by the successful bidders, as valid in law and to dismiss the other three writ petitions.
Common allegations made by the petitioners in W.P.(C) Nos. 6044, 6799 and 8890 of 2003 are that directions given by the Commissioner of Endowments for publishing the notice in a widely circulated Oriya newspaper of the locality was not complied with. According to the petitioners, the notice for auction sale published in the Oriya daily The Sambad'' in its Jeypore Edition is not circulated in Paralakhemundi and such publication in the said Jeypore Edition of the newspaper was made with mala fide intention for selling the lands to the kith and kin of the Executive Officer of the deity and to prevent others from participating in the auction sale. It has been further alleged in the above writ petitions that minimum price of the land in question at the time of auction was Rs. 4,10,000/- and the total price would have gone up to a minimum of Rs. 30,00,000 but the same has been sold for a paltry sum of Rs. 5.00 lakhs and odd from which itself, an inference of mala fide can be drawn.
By order dated 17.3.2004 passed in W.P.(C) No. 6044 of 2003, as it was submitted on behalf of the petitioner in the said writ petition that he is ready and willing to purchase the land at Rs. 30.00 lakhs and is also ready to deposit the said amount within fifteen days from that date, the petitioner was directed to deposit the said amount of Rs. 30.00 lakhs before this Court and accordingly, the said petitioner has deposited 62 numbers of separate drafts for various amounts totalling to Rs. 30.00 lakhs.
Counter affidavits have been filed in the above three writ petitions by the Executive Officer, private opposite parties as well as the Commissioner of Endowments. Additional affidavit has also been filed by the petitioner in one of the writ petitions.
Learned Counsel for the petitioners in the aforementioned three writ petitions have raised a sole ground on which they have challenged the process of sale/auction conducted by the Executive Officer pursuant to the order passed by the Commissioner of Endowments, Orissa, Bhubaneswar u/s 19 of the Act and the said ground being that the notice was published in the Oriya newspaper The Sambad'' in its Jeypore Edition which has no circulation in the locality of the district of Gajapati. In the further affidavit filed by the petitioner in W.P.(C) No. 6044 of 2003, a copy of The Sambad Advertisement Tariff has been annexed as Annexure-6 which discloses that the Jeypore Edition of the said paper covers the area of Koraput, Jeypore, Malkangiri, Nabarangpur, Raygada and the border district of Andhra Pradesh. Basis on the said Annexure-6, it is contended on behalf of the petitioners that the said newspaper ''The Sambad'' in which the adverstiment for auction sale was published is not circulated in the District of Gajapati. In reply to the above, Learned Counsel for the private opposite parties (successful bidders) relying on the counter affidavit filed on their behalf, submitted that the said Annexure-6 clearly shows that it is the advertisement tariff of ''The Sambad'' with effect from 1.4.2003 and therefore, no reliance can be placed on the said Annexure-6 to come to conclusion that the Jeypore Edition of the said newspaper was not circulated in the locality on 1.12.2001. It was further contended by him that at the time when the publication was made, the Jeypore Edition of the said newspaper ''the Sambad'' was issued and being printed at Berhampur as the Sambad has no press at Jeypore and the same was widely circulated in the locality. It was therefore contended by the Learned Counsel that there has been no infraction of the directions of the Commissioner of Endowments given in his order while permitting sale of the said land u/s 19 of the Act.
Learned Counsel for the private opposite parties have made serious allegations against the petitioner in W.P.(C) No. 6044 of 2003 to the effect that the said petitioner is a person who mediates in the sale and purchase of real estate which would be clearly evident from the fact that after he was directed to deposit Rs. 30.00 lakhs before this Court, he gave out in the locality that this Court has directed that whoever pays advance money for purchase of homestead land from out of the land in question, can handover to him advance amount in shape of bank draft in the name of the Registrar (Judicial) and if such payment is made, such persons shall be allotted residential plots and accordingly, collected the said 62 numbers of draft purchased by various persons in the name of the Registrar (Judicial) of this Court.
In the Counter affidavit filed on behalf of the Commissioner of Endowments, Orissa, Bhubaneswar in W.P. (C) No. 6044 of 2003, it is stated that after the order was passed permitting sale of the land by way of public auction on the conditions imposed in the said order, all the said conditions were complied with and only thereafter, the auction was held in presence of the Divisional Inspector of Endowments. Subsequent to the same, as the said Commissioner received certain allegations with regard to the process of sale, he directed the Additional Assistant Commissioner of Endowments, Berhampur to cause an enquiry and submit a report. Accordingly, the said Addl. Asst. Commissioner of Endowments caused an enquiry and submitted a report which has been annexed to the counter affidavit as Annexure-A/1.
We have perused the said report in which the Addl. Asst. Commissioner of Endowments after thorough enquiry has reported that each and every condition imposed in the order permitting sale was complied with and the auction was held in presence of the Divisional Inspector of Endowments on 18.12.2001 in which various persons participated.
Sub-sections (3) to (5) of Section 19 of the Orissa Hindu Religious Endowments Act, 1951 are quoted hereunder:
Allenation of immovable trust property:
(1) & (2) ***
(3) A copy of the order made by the Commissioner under this section shall be communicated to the State Government and to the trustee and shall be published in such manner as may be prescribed.
(4) The trustee may, within thirty days from the date of receipt of a copy of the order and any person having interest may, within thirty days from the date of publication of the order, appeal to the State Government to modify the order or set it aside:
Provided that appeals from the orders communicated or published prior to the date of commencement of the Orissa Hindu Religious Endowments (Amendment) Act, 1980 shall lie within a period of three months from the date of communication or, as the case may be, publication of the order or within a period of thirty days from the commencement of the said Act whichever period expires earlier.
(5) In any case where appeal has not been made to the State Government it appears to the State Government (that the alienation is not necessary or beneficial to the institution, or) that the consideration fixed in respect of the transfer by exchange, sale, mortgage or lease for a term exceeding five years of any immovable property is inadequate, they may, within ninety days from the date of the receipt of the order communicated to them under Sub-section (3) or the date of the publication of the order whichever date is later, call for the record of the case from the Commissioner and after giving an opportunity of hearing to the parties concerned, revise the order of the Commissioner:
Provided that in any case where the transfer has not been effected in pursuance of the order of the Commissioner under Sub-section (1), the State Government may exercise the aforesaid power even after the expiry of ninety days from the date of such order.
From the above provisions, it is clear that a copy of the order of the Commissioner under this section is required to be communicated to the Sate Government. An appeal is provided from the said order either by the trustee or by any person having interest, to the State Government for modification or for setting aside the order and even if no appeal is preferred still it appears to the State Government that the alienation is not necessary or beneficial to the institution or the consideration fixed is inadequate, the State Government can within ninety days from the date of receipt of the order or the date of publication of the order, call for the record from the Commissioner and after giving an opportunity to the concerned parties, may revise the order.
We find in the instant case that after the Commissioner passed the order sanctioning for sale of the lands in question u/s 19 of the Orissa Hindu Religious Endowments Act, the same was communicated to the State Government and, as a matter of fact, the State Government has also confirmed the said order.
In view of the above position, we are unable to persuade ourselves to hold that the conditions imposed in the order of the Commissioner of Endowments permitting sale of the land in question by way of public auction were not strictly followed and the process of auction sale is improper and vitiated. We are convinced that there is no impropriety or illegality in conducting the auction sale of the land in question pursuant to the permission granted by the Commissioner of Endowments in his order passed u/s 19 of the Orissa Hindu Religious Endowment Act. We are of the further view that as the writ petitions involve disputed questions of fact, it would not be appropriate for us to make a roving enquiry for ascertaining the truth with regard to the other factual allegation made by the parties in these applications filed under Article 226 of the Constitution.
Similarly W.P. (C) No. 4490 of 2004 filed by some of the subsequent purchasers from the successful bidders also involves disputed questions of fact inasmuch as the nature of the prayer made therein seeking an order from this Court for declaring the title of the Petitioners/successful bidders, cannot be granted in a writ petition.
In view of our above conclusion, all the writ petitions i.e. W.P.(C) Nos. 6044, 6799 and 8890 of 2003 and W.P.(C) No. 4490 of 2004 are dismissed being devoid of merit but in the circumstances without any cost.
The amount of Rs. 30.00 lakhs deposited by the petitioner in W.P. (C) No. 6044 of 2003 before this Court be returned to the petitioner/petitioner''s Counsel along with interest, if any, accrued thereon.
Sujit Barman Ray, C.J.
I agree.