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1990 DIGILAW 46 (ORI)

BHAGABAN PRASAD DAS v. STATE OF ORISSA

1990-02-15

A.K.PADHI, LINGARAJA RATH

body1990
( 1 ) AN order having been passed by opposite party No. 1-State of Orissa under Sec. 19 (4) of the Orissa Hindu Religious Endowments Act, 1951 (shortly 'the Act') directing to hold public auction of a piece of property for the purchase of which the petitioner had made a move, he has approached this Court for issue of a writ of certiorari to quash the same. ( 2 ) THE facts, in brief are that the petitioner is a tenant in respect of three plots of land with a house standing thereon. The house admittedly is a small one and in a bad shape consisting of one bed-room, one storeroom and a kitchen with R. C. C. roof and three other rooms which have roofs of rafters and tiles. The house is situated on plot No. 1197 / 2281 with an area of A. O. . 028 decs. and plot No. 1196 which is a Bari of the house is of an area of A. O. 020 decs. The other plot No. 1198 consists of an area of A. O. 013 decs. which is a sweeper's passage and can only be used for that purpose and hence, in effect, the land purported to be sold is A. O. 048 decs. It is the petitioner's case that he having continued in the premises since long negotiated with O. P. No. 3, the owner, for purchase of the house and had paid an advance of Rs. 500/ -. On 19-7-1980 the O. P. No. 3 filed an application under Sec. 19 of the Act before the Commissioner of Endowments which came to be registered as O. A. No. 132 of 1980 seeking permission to alienate the house and also some other lands. In the very application, O. P. No. 3 stated the house not to be in a good condition and requires a thorough repair involving heavy expenditure. In the application the house was valued at Rs. 25,000 / -. While the matter was pending before the Commissioner, the Inspector of Endowments having been directed submitted a report making the valuation of the house and land at Rs. 35,000 / -. The petitioner coming to know of the pending proceeding before the Commissioner filed an application before him for purchase of the house. 25,000 / -. While the matter was pending before the Commissioner, the Inspector of Endowments having been directed submitted a report making the valuation of the house and land at Rs. 35,000 / -. The petitioner coming to know of the pending proceeding before the Commissioner filed an application before him for purchase of the house. The Commissioner made a spot visit and in his order (Annex.-4) came to the conclusion that the valuation of the house could not be less than Rs. 40,000 /but that since the petitioner was occupying the house since long as a tenant, it may be sold to him for a consideration of Rs. 35,000 / -. ( 3 ) THE order of the Commissioner was challenged in appeal before the State by O. P. No. 3 with the petitioner as one of the respondents and in the appeal, O. P. No. 3 filed an affidavit of one Sashibhusan Panda that he was prepared to purchase the house at Rs. 50,000/ -. The appeal was disposed of on 6-5-1983 by order in Annexure-5 by the Secretary, Law Department, acting as the appellate authority, holding that the order of the Commissioner needed slight modification to the effect that the land and the house may be disposed of by public auction in presence of the Assistant Commissioner of Endowments, Bhubaneswar, and unless a price higher than Rs. 35,000/- is fetched in the public auction, the property may be sold to the petitioner at Rs. 35,000 / -. It is this order of the State which is impugned in this application. ( 4 ) THE order of the Government does not appear to be workable. If public auction is to be held to dispose of the property, obviously an earnest money has to be fixed and collected from the intending bidders. If in the auction a person other than the petitioner offers Rs. 35,000/ -, there is no reason as to why he should be deprived of the right to purchase a house he having taken the trouble of depositing the earnest money and also participating in the auction. A public auction could not be directed to be held merely for the purpose of finding out whether the petitioner could be a viable purchaser. Besides, the order also does not Show as to what would happen if the bid falls below Rs. 35,000/ -. A public auction could not be directed to be held merely for the purpose of finding out whether the petitioner could be a viable purchaser. Besides, the order also does not Show as to what would happen if the bid falls below Rs. 35,000/ -. It would stand to reason to hold that once the property is thrown open to sale through public auction, it has to be sold at the price which is fetched therein unless a minimum price is fixed which has not been directed in the order. ( 5 ) ). In that view of the matter, we do not think that carrying out of the order of the Government as made is feasible. ( 6 ) THE O. P. No. 3 himself came with the application in 1980 that the value of the house would be Rs. 25,000/ -. He filed an affidavit before the appellate authority of a person agreeing to purchase the house at Rupees 50,000 / -. He himself also made the statement before the Government, as is disclosed from the appellate order, that if the property is sold by public auction it would easily fetch a price of Rs. 50,000/ -. It is also an admitted fact that the house is not only an old one but is in a bad state and would necessitate quite substantial sum for its repair. From all these facts, it would appear that the fair price of the house and the land was thought to be Rs. 50,000 / -. Since both the Commissioner as also the appellate authority felt that the petitioner had an equitable right to purchase the house because of his long stay there, we think it to be in the interest of justice to allow the petitioner to purchase the house and the land at the price of Rs. 50,000/- at which it would have reasonably fetched in the year 1980. ( 7 ) TAKING all the facts and circumstances into consideration, as above, we think the reasonable price of the land and the house in 1980 would be Rs. 50,000/ -. Had the house been sold in 1980, the O. P. No. 3 which is a public endowment would have received Rs. 50,000/ -. Hence, it would be fit and proper that the price of the house and the land now fixed at Rs. 50,000/ -. Had the house been sold in 1980, the O. P. No. 3 which is a public endowment would have received Rs. 50,000/ -. Hence, it would be fit and proper that the price of the house and the land now fixed at Rs. 50,000/- together with interest @ 10% per annum from 1980 till the end of February, 1990, roughly comes to a sum of Rs. 98,000 / -. We had put the suggestion to Mr. Das and he after taking time for obtaining instruction from his client has submitted that the petitioner is agreeable to purchase the house at Rs. 98,000/- -. ( 8 ) IN the result, this petition is allowed, the impugned orders in Annexures 4 and 5 are quashed and it is directed that if the petitioner comes forward with Rs. 98,000/ -, before end of March, 1990, the O. P. No. 3 shall execute a sale deed in his favour on receipt of such consideration within fifteen days thereafter. However, if the petitioner does not come forward with the consideration as determined, this order in his favour shall not work out and the property shall be sold under the control of the Commissioner of Endowments through public auction without any condition attached. There would, however, be no order as to costs. Order accordingly.