Dismissed

Shyam v. Commissioner

Orissa HC14 Mar 2024OJC/2130/1999

Case brief

AI extract

What is this about?

Petitioner alleged he was wrongfully denied participation in a public auction of deity land at Cuttack despite submitting earnest money drafts, alleging fraud and collusion among opposite parties. The High Court declined to adjudicate disputed facts in writ jurisdiction, held fraud must be proved not merely alleged, noted Section 73 OHRE Act bar, and dismissed the petition.

What the court decided

AI extract

Shyam Vs Commissioner — Property and Title | Orissa HC (2024)

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ORISSA HIGH COURT : CUTTACK

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O.J.C. No.2130 of 1999

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In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950

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Sri Shyam Sundar Mohapatra Aged about 37 years Son of late Kasinath Mohapatra At: Basulisahi P.O./P.S.: Mangalabag Town/District: Cuttack … Petitioner. -VERSUS-

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1. Commissioner of Endowment Government of Odisha B.J.B. Nagar, Bhubaneswar District: Khurda

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2. Additional & Assistant Commissioner of Endowment At/P.O.: Buxibazar, P.S.: Cantonment Town/District: Cuttack.

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3. Sub-Registrar, Cuttack P.O.: Chandini Chowk, P.S.: Lalbag District: Cuttack.

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4. Sanjaya Kumar Panda Son of late Dhaneswar Panda Hereditary Managing Trustee Sidheswar Mahadev, At: Sidheswar Sahi

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P.O.: Tulasipur, P.S.: Lalbag District: Cuttack.

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5. Arup Kumar Panda Father’s Name: Not known At: Bajrakabati Road, Cuttack.

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6. Ashwini Kumar Panda Father’s Name: Not known Proprietor Axe Construction Bajrakabati Road, Cuttack. … Opposite parties.

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Counsel appeared for the parties:

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For the Petitioner : Mr. Prasanna Kumar Nanda,
Advocate
For the Opposite parties : Mr. Lalatendu Samantaray,
Additional Government Advocate
Mr. Surya Prasad Mishra,
Senior Advocate along with
Soumya Mishra, Advocate
for opposite party Nos.4 and 5
Mr. Amiya Kumar Mishra,
Advocate for opposite party No.6
P R E S E N T:

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THE HONOURABLE CHIEF JUSTICE MR. CHAKRADHARI SHARAN SINGH

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AND

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THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

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Date of Hearing : 12.03.2024 :: Date of Judgment : 14.03.2024

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JUDGMENT

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O.J.C. No.2130 of 1999

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MURAHARI SRI RAMAN, J.—

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THE CHALLENGE:

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This application under Article 226/227 of the Constitution of India questions the actions of the opposite parties in not affording opportunity to participate in the auction of the property of deity, Shree Sidheswar Mahadev, Cuttack, and consequent thereto, the petitioner prays for grant of the following relief(s):

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“In the facts and circumstances narrated above, it is humbly prayed that your Lordships may be graciously pleased to issue rule NISI calling upon the opposite parties to show cause and on perusal of the causes shown, make the said rule absolute and be further pleased to:

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(i) Issue a writ of certiorari or any other appropriate writ or order quashing the auction sale dated 26.12.1998 as per sale notice vide annexure-2 and declare the part sale of the properties dated 05.02.1999 pursuant to the auction vide Annexure-2 as void and illegal

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And

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(ii) issue a writ of mandamus directing the opposite parties to make fresh auction giving an opportunity to the petitioner to participate in the said auction and negotiation;

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And

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(iii) pass such other order/orders, direction/directions as would be deemed fit and proper in the facts and circumstances of the case;

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And

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for this act of kindness, the petitioner shall as in duty bound ever pray.”

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THE BACKDROP OF THE PRESENT PROCEEDING:

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2. Shorn off unnecessary detail narration, suffice it to cull out facts necessary for adjudication of the present dispute.

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2.1. The opposite party No.4 being the Hereditary Managing Trustee of the institution filed an application under Section 19 of the Odisha Hindu Religious Endowment Act, 1951 (in short “OHRE Act”) before the Commissioner of Endowment-opposite party No.1, who accorded sanction to sell the schedule land in public auction keeping in view the offset price fixed by the said Authority. It was further conditioned in the sanction for alienation of the property that the opposite party No.4 was required to sell through public auction.

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2.2. Against the order of the Commissioner of Endowment, an appeal was preferred before the Minister of Law which was registered as Appeal No.4/1993. The appellate Court confirmed the order of sale by order dated 07.02.1995. The appellate Court while confirming

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the order of sale also modified the order to the extent that the offset price would be reduced and the sale would be through auction and negotiation. On the basis of such observations, the opposite party No.l by order dated 09.04.1996 modified the offset price to Rs.15,00,000/- per acre.

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2.3. Pursuant to the Orders dated 13.08.1993, 15.01.1997 and 25.061998 in O.A. No.120-II/1992 of the opposite party No.l, the opposite party No.4 gave a notice for sale of Ac.2.564 dec. of land situated at Sidheswar Sahi, by sale through public auction.

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2.4. The petitioner intended to participate in the auction/ negotiation and decided to purchase the subject-land put to auction by the Trustee. As per the terms and condition (Clause-5) the petitioner made two Bank Drafts dated 24.12.1998 in the Indian Bank for sum of Rs.50,000/- each totalling Rs.1,00,000/- in favour of Shree Sidheswar Mahadev to deposit the same before the Hereditary Managing Trustee (opposite party No.4) as earnest money to participate in the auction and went to the Office of the Hereditary Managing Trustee on 24.12.1998 to submit his sealed envelope addressed to the Hereditary Managing Trustee along with theforwarding letter and Bank Drafts as described above.

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2.5. It is alleged by the petitioner that when he visited the office of the opposite party No.4 to submit his papers along with Bank Draft of Rs.1,00,000/- towards earnest money, the same was declined to be received on the ground that the Hereditary Managing Trustee was out of Cuttack. Therefore, the petitioner went to the Office of Additional Assistant Commissioner of Endowment, Cuttack and submitted the required sealed cover and earnest money.

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2.6. As per the terms and conditions of the notice, the auction was scheduled to take place on 26.12.1998 in the Office of Additional Assistant Commissioner and therefore, the petitioner went to the office of the opposite party No.2 on 26.12.1998 at 10.30 to participate in the public auction and negotiation. On the said date it could be made known that the Hereditary Managing Trustee (opposite party No.4), who usually resides outside the State, i.e ., at New Delhi, has given a Power of Attorney in favour of opposite party No.5. The opposite party No.5, therefore, conducted the auction in absence of the opposite party No.4.

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2.7. It is alleged that the opposite party No.5 colluded with the opposite party No.6 and some of their henchmen wanted to conduct the auction themselves and did not allow the petitioner to participate in the auction as a bona fide bidder. To protest such illegal auction of the

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opposite party Nos.4 and 5, the petitioner gave a letter on 28.12.1998 to the Additional Assistant Commissioner of Endowment demonstrating violation of terms and conditions and requested to cancel the auction and negotiation as it has been done in an unlawful manner violating the terms and conditions.

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2.8. As no action was taken by the opposite party No.2 in spite of repeated requests in this regard and no action was taken on his letter dated 28.12.1998 the petitioner decided to move to the proper Court of law to redress his grievance and accordingly, on 04.01.1999 filed an application before the Additional Assistant Commissioner of Endowment, Cuttack (the opposite party No.2) for grant of urgent certified copies of the documents so that the petitioner can agitate his grievance in the proper Court.

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2.9. In the meantime the opposite party No.5 could manage to sell some of the properties in favour the opposite party No.6 and others on 05.02.1999. The opposite party No.5 had sold on 05.02.1999 land measuring Ac.0.282 dec. out of Ac.2.564 dec. of land belonging to the deity.

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2.10. It is also alleged by the petitioner that the opposite party Nos.4, 5 and 6 are related by blood and fraudulently colluded among themselves making systematic attempt to grab the entire property of the Matha (deity).

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2.11. It is contended by the petitioner that he had every right to participate in the auction and negotiation and the opposite parties acted with mala fide, as a result of which he was deprived of participating in the auction even though he fulfilled all the requisite formalities of the auction.

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2.12. Being unsuccessful in his attempt to frustrate the effect of the auction sale, the petitioner has approached this Court by way of filing the present writ application.

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THE REPLIES OF THE OPPOSITE PARTIES:

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3. Refuting allegations and averments of the petitioner, the opposite party Nos.1 and 2 filed counter affidavit dated 09.03.1999 and submitted that the Commissioner of Endowments by Order dated 13.08.1994 passed in exercise of the powers conferred upon him under Section 19 of the OHRE Act permitted the Hereditary Trustee of the aforesaid Institution to alienate the properties by negotiation in presence of the Additional Assistant Commissioner of Endowments, Cuttack.

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3.1. In consonance with the aforesaid orders advertisement by beat of drums was made inviting persons interested to purchase the lands. The terms and conditions of the negotiation were also fixed and approved by the Additional Assistant Commissioner of Endowment, Cuttack. According to the terms and conditions the

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interested buyers were to submit offer in a sealed envelope addressed to the Hereditary Trustee/Managing Trustee either by hand or by registered post.

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3.2. On 24.12.1998 at about 4.00 P.M. the petitioner came to the Office of the said Commissioner and requested him to receive an envelope and a letter addressed to the Additional Assistant Commissioner of Endowments, Cuttack. In due course of business this deponent received the letter on 24.12.1998 at 4.00 P.M. and the said letter along with the envelope was entered in the diary on the same day. The Authority also directed that the letter was to be put up on the date of negotiation. It is further submitted by the opposite party Nos.1 and 2 that before receiving the letter, the petitioner was instructed to deliver the envelope to the Power of Attorney Holder of the Hereditary Trustee. The petitioner, however, intimated that he had already gone to the temple, but the Hereditary Trustee was found absent. However, the envelop bearing the Demand Drafts were returned to the petitioner on 26.12.1998, which was received back after making necessary endorsement.

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4. Narrating the background history leading to auction of the property of deity, the opposite party Nos.4 and 5 filed counter affidavit dated 26.02.1999. It is affirmed that all steps required under the OHRE Act have been taken

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prior to auction sale of subject-property. Said opposite parties asserted that,

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“That the averment made in paragraph 4 is not correct and is hereby denied. It is not a fact that the appellate authority while confirming the order of sale was pleased to modify the order to the extent that offset price shall be reduced and the auction sale shall take place by the opposite party No.4 through auction and negotiation is not correct. But appellate authority while disposing of the Appeal No.4/1993 by its Order dated 07.02.1995 has observed that

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‘It is open to the appellant to make an attempt to transfer the land at the price fixed by the Commissioner of Endowments, opposite party No.1 and if no Bidder comes forward he can again move the Commissioner of Endowments for modification of the Order passed by the Commissioner dated 13.08.1993.’ ”

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4.1. Disputing facts as averred by the petitioner, the opposite party Nos.4 and 5 have submitted that the General Power of Attorney Holder, the opposite party No.5, has issued notice and signed the terms and conditions approved by the Additional Assistant Commissioner, opposite party No.2, wherein it is specifically mentioned that the person intending to participate in the negotiation for purchase of schedule land had to obtain the terms and conditions from the Office of the opposite party No.4 and to submit the sealed offer either by hand or by Registered Post in the Office of the Hereditary Managing Trustee so as to reach him on or before 5.00

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P.M. on 24.12.1998. Therefore, the allegation made by the petitioner that the Hereditary Managing Trustee was out of station for which he was forced to submit the sealed envelope along with Bank Draft to the opposite party No.2 was sheer improbable.

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4.2. It is stated by the opposite party Nos.4 and 5 that the story of the petitioner that having obtained Bank Draft from Indian Bank at Chhatrapur, which is around 180 kilometres from Cuttack, could manage to travel and attempt to furnish required documents at the Office of Hereditary Trustee seems incongruous.

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5. Other opposite parties have also filed their responses and denied and disputed the averments and contentions of the petitioner. They affirmed that sale deeds having been executed and upon demarcation by the competent authority being made, physical possession of the properties in question had already been delivered.

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5.1. The conditions for submission of the bid document to participate in the auction being not fulfilled by the petitioner, the writ petition is misconceived and liable to be dismissed.

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HEARING OF THE WRIT PETITION:

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6. This matter was on board on 12.03.2024 under the heading “Admission”. Since pleadings are complete and

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have been exchanged amongst the parties, and the matter being pending for the last 25 years, on the consent of counsel for respective parties, the matter has been finally heard. Heard Sri Prasanna Kumar Nanda, learned Advocate for the petitioner, Sri Surya Prasad Mishra, learned Senior Advocate appearing along with Sri Soumya Mishra, learned Advocate on behalf of the opposite party Nos.4 and 5 and Sri Amiya Kumar Mishra, learned Advocate for the opposite party No.6.

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SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES:

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7. Sri Prasanna Kumar Nanda, learned Advocate for the petitioner submitted that the opposite parties being hand-in-glove, have acted fraudulently with mala fides to grab valuable property of the deity, Shree Sidheswar Mahadev. Depriving the petitioner to participate in the auction/negotiation even though bank draft with sealed envelope was submitted to the Additional Assistant Commissioner of Endowments on 24.12.1998 before 5.00 P.M. would offend the principles of natural justice. As the opposite party Nos.4, 5 and 6, &c . are blood relatives, the sale of property by auction is an eye-wash. Therefore, this Court is required to show indulgence by cancelling auction/negotiation and allow the petitioner to participate in the negotiation.

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8. Sri Surya Prasad Mishra, learned Senior Advocate for the opposite party Nos.4 and 5 supported by Sri Amiya Kumar Mishra, learned Advocate for the opposite party No.6 submitted that the conditions of auction sale being violated and the petitioner having not delivered the required documents with the opposite party No.4Hereditary Managing Trustee of Shree Sidheswar Mahadev, within the period stipulated, there was no occasion for him to participate in the auction sale. His attempt to extend the period being frustrated, the petitioner has approached this Court with flimsy grounds by enumerating concocted story.

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CONSIDERATION OF RIVAL CONTENTIONS:

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9. The arguments and counter arguments boiled down to one aspect during the course of hearing that the petitioner is aggrieved by not affording him opportunity to participate in the auction sale of the property of the deity.

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9.1. The petitioner has, in the rejoinder affidavit dated 12.03.1999, stated thus:

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“For better appreciation of the matter, the extract portion of the Terms & Conditions vide Clause - 5 is quoted below:

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‘(5) The offer should reach the Hereditary Managing Trustee on or before 5 p.m. on 24.12.1998. The offer

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should be submitted in plain paper giving details of name and address of the intending purchaser, earnest money deposited, the consideration amount to be paid and the time schedule for depositing the entire consideration money.”

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9.2. Reading of the averments and contents of the writ petition it transpires that the petitioner visited the Office of the opposite party No.4 to submit necessary document along with Bank Draft of Rs.1,00,000/- towards earnest money, but the same was not received by anybody on the ground that the Hereditary Managing Trustee was out of Cuttack. However, such fact was disputed and denied by the opposite parties by stating that having obtained the bank drafts from Chhatrapur, which is around 180 kilometres from Cuttack, reaching at the Office of Hereditary Managing Trustee-opposite party No.4 was an improbable fact. As the petitioner failed to satisfy the terms of notice vide Clause 5, extracted herein above, he was rightly disentitled to participate in the auction.

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10. This Court on 17.02.1999 while issuing notice in the present writ petition, passed the following interim Order:

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“The sale of land in respect of Sri Sidheswar Mahadev, bije at Sidheswar Sahi, Cuttack, which is challenged in this application, shall not be made absolute and there shall be no further sale of the land belonging to the said deity without leave of this Court.

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Issue notice. Accept one set of process fee.”

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10.1. Again on 06.08.1999, aforesaid Order has been modified by observing thus:

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“Heard the parties on the question of continuance of the interim Order dated 17.2.1999.

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The petitioner has filed the writ application challenging the action of the opposite parties in holding an auction in respect of some of the properties of Shree Sidheswar Mahadev, Cuttack. Petitioner’s case is that he was denied the opportunity of making an offer. It is his case that sealed envelopes containing offers were to be addressed to the Hereditary Managing Trustee of the institution and was to be delivered by hand or by registered post. It is the case of the petitioner that he went to the house of Hereditary Managing Trustee and found him absent and thereafter handed over the offer including the draft for the earnest money to the Addl. Asst. Commissioner of Endowments, Cuttack.

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2. During the course of hearing of the writ application and Misc. Cases, it was noticed that the drafts were prepared at a place which is far away from Cuttack. The stand of the petitioner that he obtained the draft much earlier to the scheduled time was doubted. The officials of the concerned bank were noticed to indicate as to at what time the draft had been issued. That was felt necessary because the drafts were of issued on the last date for making the offer, at a Bank situated at quite a long distance from Cuttack No definite time was indicated by the Bank official in the affidavit filed before this Court.

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3. It is pointed out by Mr. S. Mishra (2) and Mr. B. Ray, learned counsel for some of the opposite parties that after the auction, five sale deeds have been registered and 15 sale deeds have been executed awaiting registration covering a total area of Ac.1.249 out of Ac.2.564. It is their stand that the registration could not be done because of the interim order. It is further stated that consideration money has already been paid.

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4. Learned counsel for the petitioner states that his initial offer in the sealed cover was Rs.15.05 lakhs per acre, and settlement was made at Rs.15.17 lakhs per acre which is more than the amounts offered by him. But now the petitioner is willing to offer Rs.20 lakhs.

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Sri S. Mishra, (2) appearing for opposite party no.6 pointed out that the Bank draft was not given in sealed cover. This aspect is disputed by the petitioner.

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5. From the above recital it is clear that lot of factual controversies are involved. In that view of the matter, we do not think it necessary to allow the interim order dated 17.02.1999 to continue and the same is modified to the extent that any action taken in pursuance of the auction held shall be subject to the result of the writ application.

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Call this matter after four weeks for final disposal as agreed to by learned counsel for parties.”

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10.2. As it is apparent from the pleadings of the parties and the aforesaid Order of this Court, factual disputes are

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involved in the present case, more especially when the petitioner has alleged fraud, collusion and mala fides.

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11. In Sanjay Kumar Jha Vrs. Prakash Chandra Chaudhary, (2018) 14 SCR 893, it has been observed as follows with respect to jurisdiction of writ Court to exercise power under Article 226/227 of the Constitution of India in the presence of disputed questions of fact:

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“13. It is well settled that in proceedings under Article 226 of the Constitution of India the High Court does not adjudicate, upon affidavits, disputed questions of fact. In arriving at the finding that the land offered by respondent Prakash Chandra Chaudhary was located within Giriyama Mauza of Falka Block the learned Single Bench embarked upon adjudication of a hotly disputed factual issue, which the High Court, while exercising its writ jurisdiction, does not do.

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16. It is well settled that in proceedings under Article 226 of the Constitution of India, the High Court cannot sit as a Court of Appeal over the findings recorded by a competent administrative authority, nor re-appreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. The High Court does not ordinarily interfere with the findings of fact based on evidence and substitute its own findings, which the High Court has done in this case. ***”

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11.1. It has also been observed in the case of K. Kumar Gupta Vrs. Sri Markendaya and Sri Omkareswara Swamy Temple, 2022 LiveLaw (SC) 182 that,

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“8.1 Once the appellant was found to be the highest bidder in a public auction in which 45 persons had participated and thereafter when the sale was confirmed in his favour and even the sale deed was executed, unless and until it was found that there was any material irregularity and/or illegality in holding the public auction and/or auction/sale was vitiated by any fraud or collusion, it is not open to set aside the auction or sale in favour of a highest bidder on the basis of some representations made by third parties, who did not even participate in the auction proceedings and did not make any offer. In this context, we rely on the following observations of this Court in the case of Jasbhai Motibhai Desai Vrs. Roshan Kumar, Haji Bashir Ahmed and Ors., (1976) 1 SCC 671 made in paragraphs 34, 37 and 49, which are as under:

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‘34. This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject-matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the

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matter, (see State of Orissa Vrs. Madan Gopal Rungta, AIR 1952 SC 12; Calcutta Gas Co. Vrs. State of W.B., AIR 1962 SC 1044; Ram Umeshwari Suthoo Vrs. Member, Board of Revenue, Orissa, (1967) 1 SCA 413; Gadde Venkateswara Rao Vrs. Government of A.P., AIR 1966 SC 828; State of Orissa Vrs. Rajasaheb Chandanmall, (1973) 3 SCC 739; Satyanarayana Sinha Dr Vrs. S. Lal & Co., (1973) 2 SCC 696).

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37. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories:

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(i) ‘person aggrieved’; (ii) ‘stranger’;

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(iii) busy-body or meddlesome interloper.

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Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the

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wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.

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49. It is true that in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guidelines indicated by us, coupled with other well-established selfdevised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc. can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money.”

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In the aforesaid decision, it was also observed that despite adequate opportunity, if a person has not lodged any objection at an appropriate stage and time, he could not be said to have been in fact, grieved.’

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8.2 It is also required to be noted that the sale was confirmed in favour of the appellant by the Commissioner, Endowments Department after obtaining the report of the Assistant Commissioner. Therefore, we are of the opinion that in the aforesaid facts and circumstances of the case, the High Court ought not to have ordered re-auction of the land in question after a period of 23 years of confirmation of

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the sale and execution of the sale deed in favour of the auction purchaser by observing that the value of the property might have been much more, otherwise, the object and purpose of holding the public auction and the sanctity of the public auction will be frustrated. Unless there is concrete material and it is established that there was any fraud and/or collusion or the land in question was sold at a throw away price, the sale pursuant to the public auction cannot be set aside at the instance of strangers to the auction proceeding. The sale pursuant to the public auction can be set aside in an eventuality where it is found on the basis of material on record that the property had been sold away at a throw away price and/or on a wholly inadequate consideration because of the fraud and/or collusion and/or after any material irregularity and/or illegality is found in conducing/holding the public auction. After the public auction is held and the highest bid is received and the property is sold in a public auction in favour of a highest bidder, such a sale cannot be set aside on the basis of some offer made by third parties subsequently and that too when they did not participate in the auction proceedings and made any offer and/or the offer is made only for the sake of making it and without any serious intent. In the present case, as observed hereinabove, though Shri Jagat Kumar immediately after finalising the auction stated that he is ready and willing to pay a higher price, however, subsequently, he backed out. If the auction/sale pursuant to the public auction is set aside on the basis of the such frivolous and irresponsible representations made by such persons then the sanctity of a public auction would be frustrated and

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the rights of a genuine bidder would be adversely affected.

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8.3 Further, the Division Bench of the High Court ought to have appreciated that the objector– Shri L. Kantha Rao, who did not participate in the auction proceedings and submit any bid can be said to be a fence sitter having no stakes on his shoulder and had simply come forward just to nullify the registered sale deed executed in favour of the appellant by adopting an indirect method of making a public offer by way of filing a ‘Public Interest Litigation’ before the High Court. The so-called lucrative offer initially made by Shri Jagat Kumar and the subsequent offer made by Shri L. Kantha Rao appears to be made only to frustrate the auction proceedings with a mala fide intent. As observed hereinabove, if there was any error in the decision-making process adopted by the authority, the remedy available was to question the sale deed in an appropriate proceeding available under the law and not by filing a petition under Article 226 of the Constitution of India. ”

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11.2. In the present case this Court has already observed in Order dated 06.08.1999 that there are factual disputes involved in the matter. Whether on 24.12.1998 the petitioner had complied with terms of Clause 5 of the auction notice as stated in the rejoinder affidavit filed. Further whether the petitioner had, in fact, travelled around 180 kilometres after obtaining drafts from the Bank at Chhatrapur and went to the Office of the

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Hereditary Managing Trustee. Whether such attempt is made within the time stipulated in the terms of notice. Whether there was fraud/collusion in the auction process. And so on so forth. Since factual adjudication is required to be made, which is not to be gone into by the writ Court in exercise of power under Article 226/227 of the Constitution of India, in view of ratio of judgments rendered by the Hon’ble Court(s), this Court is not persuaded to accede to the prayer(s) of the petitioner.

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CONCLUSION:

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12. Alleging fraudulent and collusive transaction in the conduct of sale by auction of the property of Shree Sidheswar Mahadev, without any substantial material particulars, save and except saying that the petitioner having not found the opposite party No.4-Hereditary Managing Trustee in his office on the last date for submission of documents, i.e., 24.12.1998, approached the opposite party No.2 for submission of sealed envelope with bank drafts to participate in the auction would not be sufficient for this Court to inquire into such grave allegation. It appears such allegation is an attempt to frustrate the auction and based on surmise.

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12.1. As is manifest from the counter affidavit of the opposite party Nos.4 and 5, the auction/negotiation sale made in favour of the opposite party No.6 as against thirty six

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intending purchasers. The said opposite parties also clarified that the opposite party No. 4 filed a petition before the Commissioner of Endowments for modification of the Order dated 13.081993 which was disposed of by the said Authority-opposite party No.l by his Order dated 09.04.1996, whereby the Order dated 13.08.1993 was modified by reducing the offset price from Rs.20,00,000/- per acre to Rs.15,00,000/- per acre. Again in compliance of the Order dated 09.04.1996 of the Endowment Commissioner-Opposite Party No.l, the opposite party No.4 conducted another auction in the Office of the Additional Assistant Commissioneropposite party No.2 on 13.08.1996, but on the same date nobody came forward to take part in the auction at the offset price fixed by the Endowment Commissioneropposite party No.l at Rs.15,00,000/per acre. Thereafter, the Minister initiated suo motu Revision proceeding to examine the correctness of the valuation made the Commissioner of Endowments, opposite party No.1, in reducing the offset price from Rs.20,00,000/- to Rs.15,00,000/and while disposing of the aforementioned suo motu Revision proceeding the Minister remanded the matter back to the Commissioner of Endowment-opposite party No.l to enquire into the matter in accordance with the Order in the Endowment Appeal No. 4/1993 and to pass appropriate order.

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12.2. In the presence of such factual aspects, it is difficult for this Court to render any finding as to fraudulent or clandestine dealings in the conduct of sale by auction.

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12.3. In Harjas Rai Makhija Vrs. Pushparani Jain, (2017) 2 SCC 797, Supreme Court highlighted that there must be a specific allegation of fraud. When there is an allegation of fraud, it must be enquired into. It is only after evidence is led coupled with intent to deceive that a conclusion of fraud could be arrived at. A mere concealment or non-disclosure without intent to deceive or a bald allegation of fraud without proof and intent to deceive would not render a decree obtained by a party as fraudulent. To conclude in a blanket manner that in every case where relevant facts are not disclosed, the decree obtained would be fraudulent would be stretching the principle to a vanishing point. Referring to the decision of the Supreme Court in Bhaurao Dagdu Paralkar Vrs. State of Maharashtra, (2005) 7 SCC 605 , and other cases, the Hon’ble Supreme Court held that it is clear that fraud has a definite meaning in law. It must be proved and not merely alleged and inferred. Therefore, to constitute fraud there must be an intent to deceive. When an allegation of fraud is made, it must be enquired into. Enquiry would necessarily mean granting reasonable opportunity of hearing to the party accused of committing fraud. Evidence must be led and

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thereafter fraud must be proved. No conclusion of fraud can be drawn on mere allegation and by way of inference.

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12.4. At this juncture it may be worthwhile to refer to Section 73 of the OHRE Act, which gives scope to raise issues before the competent forum:

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“73. Bar of suits in respect of administration of religious institutions.—

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(1) No suit or other legal proceeding in respect of the administration of a religious institution or in respect of any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law, except under, and in conformity with, the provisions of this Act.

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(2) Nothing contained in this Section shall affect the right of the Trustee appointed under the Act of a religious institution to institute a suit to enforce the pecuniary or property rights of the institution or the rights of such institution as a beneficiary.”

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12.5. Under such premises, it is apt for this Court not to exercise the power conferred under Article 226/227 of the Constitution of India.

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13. The factual position as of date, as conceded by the counsel for the both sides, is that pursuant to sanction under Section 19 of the OHRE Act, sale by auction was conducted and the purchaser(s) have been delivered with physical possession. In view of reasons ascribed with

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discussions made above this Court is not inclined to interfere with the sale by auction conducted on 26.12.1998 pursuant to notice in Annexure-2 and the sale of property alleged to have been made on 05.02.1999.

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14. As it is objected to by the opposite parties that the petitioner had not sought to submit bank drafts along with sealed envelope in the Office of the opposite party No.4-Hereditary Managing Trustee, there being noncompliance of terms of the notice for auction, the petitioner cannot be allowed to agitate factual contentions before this Court in the writ proceedings.

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15. In the result, this writ petition stands dismissed, but in the circumstances, there shall be no order as to costs.

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(MURAHARI SRI RAMAN) JUDGE

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MR. CHAKRADHARI SHARAN SINGH, CJ. I agree.

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(MR. CHAKRADHARI SHARAN SINGH) CHIEF JUSTICE

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Signature Not Verified

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Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTA CK Date: 15-Mar-2024 11:40:48

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High Court of Orissa, Cuttack

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The 14^th March, 2024//Aswini/Suchitra

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Shyam v. Commissioner

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Shyam v. Commissioner

Case brief

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