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2017 DIGILAW 1166 (ORI)

Lingaraj Mahaprabhu v. State of Orissa

2017-10-17

B.K.NAYAK, D.P.CHOUDHURY

body2017
JUDGMENT B.K. NAYAK, J. - All these writ petitions involve common questions of fact and law and therefore, they were heard analogously and are being disposed of by this common judgment. OJC Nos. 5594 of 1995 and 8148, 8149, 8150, 8151 of 1998 are filed by the Deity, Lord Lingaraj Mahaprabhu, Bije-Bhubaneswar. The other four writ petitions have been filed by some private individuals. 2. The facts of the case are as follows:- 2.1. The disputed property measuring Ac. 0.445 appertains to 1962 Settlement Plot No. 247, under Khata No. 1878 of Mouza-Bhubaneswar with classification ‘Bagayat’. The disputed property along with other properties belong to the Deity, Lord Lingaraj Mahaprabhu of Bhubaneswar, who had intermediary interest in respect thereof. It was part of the Trust Estate of the Deity and admittedly it vested with the State Government on 18.03.1974 under the provisions of the Orissa Estates Abolition Act, 1951 (in short “the OEA Act”). Under a scheme prepared in terms of Section 42 of the Orissa Hindu Religious Endowments Act, 1951 (in short “OHRE Act”) the management of the Deity’s endowment vested in a Trust Board under the control of the Commissioner of Endowments. The day-to-day management of the Deity’s Endowment is being looked after by an Executive Officer. 2.2 After vesting of the property the Commissioner of Endowments made a proposal for settlement of some properties including the disputed property in favour of the Deity, Lord Lingaraj Mahaprabhu under the provisions of Section-7-A of the OEA Act. Accordingly the Member, Board of Revenue, Odisha in OEA Revision Case No. 03 of 1981 by his order dated 29.04.1983 (Annexure-2 in OJC No. 5594 of 1995) settled the disputed property along with some other properties in favor of the Deity. 2.3. The said settlement order was challenged by one Gopal Chandra Das before this Court in OJC No. 1297 of 1989 on the ground that the disputed property had been leased out by Lord Lingaraj Mahaprabhu in the year 1970 in favor of two Sebaks, namely, Somanath Mohapatra and Nrusingha Mohapatra after obtaining permission of the Endowment Commissioner under Section 19 of the OHER Act and the two lessees got certificate of ownership and delivery of possession from the Deity’s Executive Officer after paying salami and rent. The suit plot was sub-divided and numbered as Plot Nos. 247/1 and 247/2. The suit plot was sub-divided and numbered as Plot Nos. 247/1 and 247/2. Plot No. 247/1 was allotted to Somanath Mohapatra who got the same mutated in his name in the Estate Office of Lord Lingaraj Mahaprabhu. Plot No. 241/2 was allotted to Nrusingha Mohapatra. By a Registered Sale Deed dated 06.12.1972 Somanath Mohapatra sold his half share in the suit property in favour of Gopal Chandra Das, the petitioner in OJC No. 1297 of 1989, who took possession and constructed a house over the same and used to pay rent to the State Government on behalf of his transferor. Therefore, Somanath Mohapatra and after him the purchaser, Gopal Chandra Das became deemed tenants under the State Government in terms of Section-8(1) of the OEA Act and hence, the Deity, Lord Lingaraj Mohaprabhu was not entitled to be settled with the disputed property. By order dated 02.09.1992 OJC No. 1297 of 1989 was disposed of quashing the order of settlement of the disputed property passed by the Member, Board of Revenue and the matter was remanded to the Member with direction to inquire into the claim of the petitioner. Gopal Chandra Das about the lease granted by the Deity’s management in favour of his vendor. 2.4. After such remand, the matter was heard by the Member, Board of Revenue. Admittedly no lease deed was executed and registered in pursuance of the so called permission granted by the Endowment Commissioner in favour of Somanath Mohapatra and Nrusingha Mohapatra. On behalf of the Deity, it was contended before the Member, Board of Revenue that the order of sanction granted by the Endowment Commissioner under Section-19 of the OHRE Act for lease was void inasmuch as no proposal for such lease was moved by the Trust Board of the Deity as required under Rule-4 of the OHRE Rules, 1959 and that no lease deed was executed and registered in pursuance of the permission of the Endowment Commissioner. The mutation of the disputed plot in the Estate Office of the Deity and the payment of salami and rent and issuance of ownership certificate in favour of the so-called lessees, it was urged, were fabricated. The mutation of the disputed plot in the Estate Office of the Deity and the payment of salami and rent and issuance of ownership certificate in favour of the so-called lessees, it was urged, were fabricated. Therefore, the claim of lease of the disputed land in favour of Somanath Mohapatra and Nursinigha Mohapatra could not be accepted and consequently, the purchaser, Gopal Chandra Das could not be said to be a tenant so as to become a deemed tenant under the State Government in terms of Section 8(1) of the OEA Act after vesting. However, the permission order of the Endowment Commissioner under Section 19 of the OHRE Act and the receipts with regard to payment of salami and rent to the temple management and issuance of ownership certificate in favour of Somanath Mohapatra and Nrusingha Mohapatra were accepted by the Member, Board of Revenue as sufficient to create tenancy in favour of the original lessee, Somanath Mohapatra. It was held that tenancy has been created by acceptance of rent by the Deity-landlord. Accordingly the member, Board of Revenue passed order on 21.08.1993 holding that Gopal Chandra Das was entitled to part of disputed land purchased by him and the same was directed to be excluded from the settlement order passed in favour of the Deity on 29.04.1983. The aforesaid order dated 21.08.1993 passed by the Member, Board of Revenue after remand, has been assailed by the Deity, Lord Lingaraj Mahaprabhu in OJC No. 5594 of 1995. 2.5 The so-called other lessee, namely, Nrusingha Mohapatra sold portions of his half share to four persons under four separate Sale Deeds as per descriptions given below:- Sl. No. Name of the purchaser Date of Sale Deed Area Sold 1 Nityananda Mohapatra 05.01.1973 Ac. 0.055 2 Gouranga Charan Das 05.01.1973 Ac. 0.055 3 Premananda Palai 05.11.1975 Ac. 0.056 ½ 4 Rajkishore Singh 05.11.1975 Ac. 0.056 ½ After order dated 21.08.1993 was passed by the Member, Board of Revenue in favour of Gopal Chandra Das on remand in OJC No. 1297 of 1989, the aforesaid four purchasers from Nrusingha Mohapatra filed four separate writ petitions before this Court bearing OJC Nos. 0.055 3 Premananda Palai 05.11.1975 Ac. 0.056 ½ 4 Rajkishore Singh 05.11.1975 Ac. 0.056 ½ After order dated 21.08.1993 was passed by the Member, Board of Revenue in favour of Gopal Chandra Das on remand in OJC No. 1297 of 1989, the aforesaid four purchasers from Nrusingha Mohapatra filed four separate writ petitions before this Court bearing OJC Nos. 1759 of 1992, 2129 of 1993, 2130 of 1993 and 2147 of 1993 challenging the settlement of the disputed land in favour of the Deity as per the order dated 29.04.1983, raising similar claims of tenancy of their vendor, as had been raised by Gopal Chandra Das in OJC No. 1297 of 1989. The four writ petitions were disposed of by this Court by common order dated 29.07.1997 in terms of the order passed in OJC No. 1297 of 1989, directing as follows:- “2. In view of the order dated 02.09.1992 passed by this Court in OJC No. 1297 of 1989, we feel that a fresh look by the, Member, Board of Revenue, Orissa in the matter would be appropriate, particularly when Deity’s property is involved. To avoid unnecessary delay, the petitioner in each is directed to appear before the Member, Board of Revenue, Orissa on 03.09.1997 so that the matter can be gone into in detail. We make it clear that we have not expressed any opinion on merit………” 2.6 After the aforesaid common order dated 29.07.1997 passed in the four writ petitions, the Member, Board of Revenue took up further hearing and passed final order on 06.03.1998 holding that since the order passed by his predecessor in office on 21.08.1993 has not been quashed, there was no ground to review the said order. The Member, Board of Revenue accordingly held as follows:- “….. ….. …… but the plaint copies of the present petitioner’s reveal that they have purchased fractions of Plot No. 247, Ac. 0.445 which has already been decided in favour of Gopal Chandra Das by my predecessor on 21.08.93 in OEA Case No. 3 of 1981. Neither Gopal Chandra Das was made party in OJC Nos. 8148, 8149, 8150,8151 of 1998 nor was the order of my predecessor dated 21.08.1993 challenged by either of the parties in OJC No. 1297 of 1989 or in the present OJCs, which ultimately means that the said order is final. Neither Gopal Chandra Das was made party in OJC Nos. 8148, 8149, 8150,8151 of 1998 nor was the order of my predecessor dated 21.08.1993 challenged by either of the parties in OJC No. 1297 of 1989 or in the present OJCs, which ultimately means that the said order is final. Hon’ble Corut has not also quashed order dated 21.08.1993 of my predecessor. In the premises, I do not find any ground to review order of my predecessor dated 21.08.1993" The Member, Board of Revenue however, did not give any specific finding as to whether Nrusingha Mohapatra had acquired leasehold/tenancy right in respect of half of the disputed property and whether the said four writ petitioners (purchasers) acquired such tenancy right by virtue of their purchases from Nrusigha Mohapatra. 2.7 The aforesaid order dated 06.06.1998 passed by the Member, Board of Revenue at the instance of the four purchasers has been challenged by the Deity, Lord Lingaraj Mahaprabhu in OJC Nos. 8148, 8151, 8149 and 8150 of 1998. The said purchasers, namely, Nityananda Mishra, Premananda Palei, Gourranga Chandra Das and Rajkishore Singh have also challenged the very same order by filing OJC Nos. 9703, 13458, 13460 and 13459 of 1998 respectively. 3. In the writ petitions filed by the Deity the Grounds of challenge to both the impugned orders of the Member, Board of Revenue are same. Identical contentions are raised by the purchasers from Somanath Mohapatra and Nrusingha Mohapatra with regard to their clams. The purchasers from Nrusingha Mohapatra, viz. the petitioners in OJC No. 9073, 13548, 13460, 13459 of 1998 and the purchaser from Somanath Mohapatra, i.e., Opposite Party No. 4 in OJC No. 5594 of 1995 contend that the disputed property was the trust estate of Lord Lingaraj Mahaprabhu, and that Somanath Mohapatra and Nrusingha Mohapatra made application to the Commissioner of Endowments for grant of permission for permanent lease of the disputed land for residential purpose in their favour under Section 19 of the OHRE Act. Their applications were registered as O.P. Case No. 74 and 76 of 1966 and by order dated 12.07.1970, the Endowment Commissioner passed order granting permission for permanent lease, whereafter the Temple Office of the Deity received salami from Somanath Mohapatra and Nrusingha Mohapatar and issued receipt in respect thereof and mutated the plot in question as plot Nos. 247/1 and 247/2 in the names of Somanath Mohapatra and Nrusigha Mohapatra. 247/1 and 247/2 in the names of Somanath Mohapatra and Nrusigha Mohapatra. The Executive Officer of the Deity issued ownership certificate to Somanath Mohapatra and Nrusingha Mohapatra in respect of those plots. They also paid land revenue in the office of the Lord Lingaraj Mahaprabhu and obtained receipts. It is contended that even though no lease deed was executed and registered, the lease was created by acceptance of salami and rent and issuance of ownership certificate and delivery of possession to Somanath Mohapatra and Nrusingha Mohapatra. It is stated that by a Registered Sale Deed dated 06.12.1972, Somanath Mohapatra sold his part of the disputed land in favour of Gopal Chandra Das, who entered into possession, obtained permission from the Special Planning Authority and constructed a house and has been paying holding tax. It is stated that during settlement operation parcha in respect of the property purchased by Gopal Chandra Das was issued in his favour. It is also stated that, Gopal Chandara Das also filed OEA Lease Case No. 292 of 1984 before the Additional Tahasildar, Bhubaneswar which was rejected on the ground that the land had already been settled with the Deity, Lord Lingaraj Mahaprabhu in OEA Revision Case No. 3 of 1981. It is stated by learned Counsel for Gopal Chandra Das (Opposite Party No. 2) in OJC No. 5594 of 1995, that the order dated 21.03.1993 passed by the Member, Board of Revenue in OEA Revision Case No. 3 OF 1981 directing to exclude the disputed property from the settlement made in favour of the Deity is quite justified. 4. The purchasers from Nrusingha Mohapatra also contended similarly that as per order of the Commissioner of Endowments, the Deity’s Office accepted salami and rent from Somanath Mohapatra and Nrusingha Mohapatra and bifurcated the Plot as Plot Nos. 247/1 and 247/2 and allotted the same respectively to Somanath Mohapatra and Nrusingha Mohapatra. It is also stated that for his legal necessity, Nrusingha Mohapatra sold portions of his share of Ac. 0.222 ½ to Nityananda Mishra, Gouranga Charan Das, Premananda Palei and Rajkishore Singh respectively by Registered Sale Deeds dated 05.01.1973, 05.01.1973, 05.11.1975 and 05.11.1975 and the purchasers took possession. It is also contended that after vesting the purchasers paid rent to the State. 0.222 ½ to Nityananda Mishra, Gouranga Charan Das, Premananda Palei and Rajkishore Singh respectively by Registered Sale Deeds dated 05.01.1973, 05.01.1973, 05.11.1975 and 05.11.1975 and the purchasers took possession. It is also contended that after vesting the purchasers paid rent to the State. During the settlement operation, at the initial stage parcha was issued in favour of the purchasers, but in the final ROR the property was recorded in favour of the Deity, Lord Lingaraj Mahaprabhu. It is contended therefore that since lease had already been granted in favour of Somanath Mohapatra and Nrusingha Mohapatra, they became tenants under the Deity-landlord and the purchasers acquired leasehold right by purchase and after vesting of the estate, they automatically became tenants under the State Government in accordance with the provisions of Section -8(1) of the OEA Act, and therefore, the disputed property was not liable to be settled in favour of the Deity under Sections-7-A of the OEA Act. Learned counsel for the purchasers form Nrusingha Mohapatra submitted that the order dated 06.03.1998 passed by the Member, Board of Revenue in the aforesaid OEA Revision Case No. 3 of 1981 did not specifically hold that Nrusingha Mohapatra had acquired leasehold right over the disputed land and accordingly the purchasers from him also stepped into his shoes and became deemed tenants under the State after vesting, though he ought to have specifically accepted the tenancy right of the purchasers as had been done by his predecessor in case of Gopal Chandra Das. 5. Mr. A.R. Dash, learned counsel appearing for the Deity, Lord Lingaraj Mahaprabhu in all the writ petitions contended that in terms of Rule-4 of the OHRE Rules the Trust Board of the Deity’s Endowment is required to file application under Section 19 for transfer of Deity’s property, and that in the instant case instead of the Trust Board or the Executive Officer of the Deity’s Endowment, the two proposed lessees made application before the Endowment Commissioner for grant of permission for lease of the land and assuming that any permission order has been granted, the same is void since the application was not in accordance with the Rules. It is also submitted that the permission is a fabricated one since the permission case number registered as Original Proceeding NO. 76 of 1966 before the Endowment Commissioner relates to applicant, Kedar Mahasuar and not to Somanath Mohapatra and Nrusingha Mohapatra. It is also submitted that the permission is a fabricated one since the permission case number registered as Original Proceeding NO. 76 of 1966 before the Endowment Commissioner relates to applicant, Kedar Mahasuar and not to Somanath Mohapatra and Nrusingha Mohapatra. His further contention is that assuming that permission was granted by the Endowment Commissioner for lease of the disputed property, the purported lease being for residential house purpose and of permanent character, a registered lease deed should have been executed and in absence of such registered document there is no valid lease. He further submitted that the receipts showing payment of salami and rent and issuance of ownership certificate to Somanath Mohapatra and Nrusingha Mohapatra are fabricated documents and the Temple Authorities did not admit the correctness and genuineness of the same. He also contended that assuming that salami and rent was accepted, in absence of a Registered Lease Deed no leasehold right can be said to have been created in favor of Somanath Mohapatra and Nrusingha Mohapatra and their purchasers. He therefore urged that the impugned order dated 21.08.1993 of the Member, Board of Revenue holding that tenancy right has been created in favor of Gopal Chandra Das and his purchased land should be excluded from the settlement made in favour of the Deity, and the subsequent impugned order of the Member dated 06.03.1998 holding that the order dated 21.08.1993 has not been set aside and therefore there is no ground to review the same, cannot be sustained. 6. The claim of the purchasers from Somanath Mohapatra and Nrusingha Mohapatra is that their vendors having obtained lease of the disputed property from the Deity, Lord Lingaraj Mahaprabhu with the permission of the Endowment Commissioner and their lease-hold right being purchased by them they became deemed tenants under the State Government after vesting, in terms of Section-8(1) of the OEA Act. It is therefore necessary to see whether Somanath Mohapatra and Nrusingha Mohapatra got lease of the disputed property form Lord Lingaraj Mohaprabhu and whether the lease said to have been granted in their favour is legal and valid and whether their purchasers can be said to have acquired such leasehold right by virtue of their purchase and as such entitled to claim the benefit of the provision of Section-8 (1) of the OEA Act. 7. 7. It was contended on behalf of the Deity, Lord Lingaraj Mhaprabhu that the so called permission granted by the Endowment Commissioner under Section 19 of the OHRE Act in O.P. Nos. 74 and 76 of 1966 is a fabricated document. We had therefore, called for the records of O.P. No. 74/66 and 76/66 from the office of the Commissioner of Endowments, Odisha. The records of the Endowment Commissioner revealed that the application filed jointly by Somanath Mohapatra and Nrusingha Mohapatra and addressed to the Commissioner of Endowments is dated 10.04.1970. It has not been registered as an Original Proceeding. On the contrary the application only makes a reference to O.P. Nos. 74/66 and 76/66. It is, therefore clear that the application dated 10.04.1970 could nt have been registered as Original Proceeding of 74 and 76 of the year 1966. The reverse of the first page of the application contains two orders dated 09.06.1970 and 12.06.1970. Both the dates written in ink have been interpolated. By the second order, permission has been granted by the Commissioner of Endowments for leasing out the disputed property in favour of the applicants for their house purpose. The order also specifically directed for grant of permanent lease and for execution and registration of lease deed at the cost of the applicants within a month from the date of passing of the order. A reference has been made in the application under Section 19 of the OEA Act that earlier Somanath Mohapatra and Nrusingha Mohapatra had made application for lease which were numbered as O.P. Nos. 74 of 1966 and 76 of 1966. No application of 1966 of the said applicants is available. It is not known whether in the year, 1966 Somanath Mohapatra and Nrusingha Mohapatra made application jointly or separately. Page four and page eleven of the Commissioner’s record reveal that order was passed on 10.05.1969 whereby the applications were rejected. It does not stand to reason as to how order sanctioning lease was passed in the very same original proceedings on the subsequent joint application of Somanath Mohapatra and Nrusingha Mohapatra dated 10.04.1970. The Deity-petitioner in OJC No. 5594 of 1955 has filed certified copy of the application of O.A. No. 76 of 1966 of the office of the Commissioner of Endowments, Orissa (Annexure-6), which relates to the property of Lord Lingaraj Mahaprabhu, but the applicant was one Kedar Mahasuar. The Deity-petitioner in OJC No. 5594 of 1955 has filed certified copy of the application of O.A. No. 76 of 1966 of the office of the Commissioner of Endowments, Orissa (Annexure-6), which relates to the property of Lord Lingaraj Mahaprabhu, but the applicant was one Kedar Mahasuar. Neither Somanath Mohapatra nor Nrusingha Mohapatra was an applicant in that Original Proceeding. In the aforesaid circumstances, this Court is of the view that the order of the Commissioner of Endowments granting permission for leasing out the disputed property in favour of Somanath Mohapatra and Nrusingha Mohapatra is of doubtful authenticity. The Endowmment Commissioner’s record appears to have been fabricated. 8. Assuming that there was a valid permission by the Commissioner of Endowments for leasing out the disputed property in favour of Somanath Mohapatra and Nrusingha Mohapatra, that by itself would not create a lease. No lease deed having been executed and registered as required under Section-107 of the Transfer of Property Act, mere acceptance of premium and rent by the Temple Administration coupled with delivery of possession, if any, would not be sufficient for creation of a permanent lease for the purpose of construction of residential house. 9. An exactly identical question arose before this Court in the case of Lord Lingaraj Mahaprabhu Bije, Bhubaneswar v. Bipra Charan Senapati (since dead) after him Prasanna Kumar Senapati and others reported in 2014 (SUPP.-II) OLR-706, wherein it has been held as follows:- “10………………. Moreover, the Member, Board of Revenue, without considering the nature and purpose of proposed lease that was sanctioned by the Endowment Commissioner in favour of opposite party no. 1 has observed that tenancy right has been created in favour of opposite party no. 1 as the petitioner accepted salami and rent from him, which is not justified in the absence of a registered deed of lease. During the course of hearing learned counsel for opposite party no. 1 submitted that the proposed lease in favour of opposite party no. 1 was for construction of residential house and that after getting ownership certificate on payment of salami and rent opposite party no. 1 entered into possession of the land and constructed a residential house thereon. This indicates that the proposed lease in favour of opposite party no. 1 submitted that the proposed lease in favour of opposite party no. 1 was for construction of residential house and that after getting ownership certificate on payment of salami and rent opposite party no. 1 entered into possession of the land and constructed a residential house thereon. This indicates that the proposed lease in favour of opposite party no. 1 was for the purpose of construction of residential house and as such the proposed lease was of permanent character which can be created only by a registered deed as per provision of Section 107 of the Transfer of the Property Act, 1882, which inter alia provides that a lease of immovable property from year to year or for any term exceeding one year, or reserving of yearly rent can be made only by a registered instrument. It is also evident from the lease sanction order (Annexure-a-1) that the Commissioner of Endowments directed for execution and registration of lease deed at the cost of the applicant, i.e., present opposite party no. 1. It is a debatable question whether a person getting a lease from the intermediary for the purpose of construction of a house would be a deemed tenant under the State after vesting of intermediary interest, within the purview of Section 8(1) of the O.E.A. Act. However, the fact remains that though opposite party no. 1 paid the salami no instrument of lease has been executed and registered and, therefore, opposite party no. 1 had not acquired lease hold right over the property.” 10. The ratio of the aforesaid decision applies with full force to the facts of the present cases. Therefore, it must be held no leasehold right or tenancy right in respect of the disputed property was created in favour of Somanath Mohapatra and Nrusingha Mohapatra merely by acceptance of salami and rent and issuance of ownership certified by the Executive Officer of Loard Liingaraj Mohaprabhu. Therefore, Gopal Chandra Das, the purchaser from Somanath Mohapatra (Opposite Party No. 2 in OJC No. 5594 of 1995) and the purchasers from Nursingha Mohapatra, viz., the petitioners in OJC Nos. 9703 of 1988, 13458 of 1998, 13460 of 1998 and 13459 of 1998 cannot be said to have acquired leasehold/tenancy right over the property by virtue of their purchase. 11. 9703 of 1988, 13458 of 1998, 13460 of 1998 and 13459 of 1998 cannot be said to have acquired leasehold/tenancy right over the property by virtue of their purchase. 11. The subsequent order dated 06.03.1998 of the Member, Board of Revenue, Odisha, except confirming the earlier order of his predecessor in office dated 21.08.1993 did not give any specific finding in favour of the purchasers from Nursingha Mohapatra. In any event, the said order must be interpreted to be one affirming the earlier order dated 21.08.1993 of his predecessor. The Deity, Lord Lingaraj Mahaprabhu has rightly challenged the said order dated 06.03.1998 in OJC Nos. 8148, 8149, 8150 and 8151 of 1998. 12. In the light of the discussions and analysis made in the preceding paragraphs, we are of the view that the orders dated 21.08.1993 and 06.03.1998 passed by the Member, Board of Revenue, Odisha, Cuttack in OEA Revision Case No. 03 of 1981 are illegal, contrary to law and as such unsustainable. We accordingly quash the said orders. In the result, OJC No. 5594 of 1995 and OJC No. 8148, 8149, 8150 and 8151 of 1998 are allowed, and OJC Nos. 9703, 13458, 13459 and 13460 of 1998 are dismissed. However, there shall be no order as to costs. Records received from the Commissioner, Hindu Religious Endowments and the Member, Board of revenue, Odisha be returned forthwith. Sd/- B.K.Nayak, J. Dr. D.P. CHOUDHURY, J. - With due respect, I have through the judgment authored by my learned brother Hon’ble Justice B.K. Nayak and I fully agree with the view taken by His Lordship. I thought it proper to supplement the judgment with following paragraphs. 13. Section 19(1) of the Hindu Religious Endowments Act, 1951 (hereinafter called “the Act, 1951) is re-produced below for better appreciation:- “19. Alienation of immovable trust property-(1) Notwithstanding anything contained in any law for the time being in force no transfer by exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to, or given or endowed for the purpose of, any religious institution, shall be made unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution and no such transfer shall be valid or operative unless it is so sanctioned. [Explanation-A lease for a term not exceeding five years but with a condition of renewal permitting continuance of the lease beyond five years shall, for the purposes of this sub-Section, be deemed to be lease for a term exceeding five years. (1-a) The fact of execution of a lease deed with a condition for renewal or renewal of such a deed shall be communicated to the Commissioner by the Trustee not later than fifteen days from the date of execution. (1-b) After expiry of the term of the lease the lessee shall deliver possession of the leasehold land to the lessor, failing which, the Commissioner may take action in accordance with the provision of Section 68: Provided that all structures, permanent or temporary, if any, constructed plants and machineries and other things installed and kept on the leasehold land, which is a subject matter of a lease executed after commencement of the Orissa Hindu Religious Endowments (Amendment) Act 22 of 1989 by the lessee, his servants or agents, shall become the property of the religious institution unless removed from the land within such period, as may be prescribed, after expiry of the term of lease, in respect of which the Commissioner shall take action under the provision of Section 68. (1-c) Notwithstanding anything contained in the proviso to Sub-Section (1-b), no property belonging to a person other than the lessee shall be subjected to confiscation under the said proviso, unless such person fails to remove his property within a period of thirty days from the date of publication of a notice which shall be issued by the Trustee within such period as may be prescribed after the expiry of the term of lease: Provided that any person whose property is affected under Sub-Section (1-c), may file an application to the Commissioner claiming the property whose decision shall, subject to the decision of the Civil Court, be final.]” Sub-Section (1) of Section 19 was incorporated in 1954 by O.H.R.E. (Amendment) Act. The explanation with subsequent Sub-Sections were inserted vide Orissa Act No. 29 of 1978. Since alienation of immovable property by way of so called lease purportedly related back to 1966 or 1969 and 1970, sub-Section (1) of Section 19 of the Act is relevant. 14. The explanation with subsequent Sub-Sections were inserted vide Orissa Act No. 29 of 1978. Since alienation of immovable property by way of so called lease purportedly related back to 1966 or 1969 and 1970, sub-Section (1) of Section 19 of the Act is relevant. 14. The provision of Section 19(1) of the Act clearly enshrines that any alienation by way of exchange, sale or mortgage or the lease for more than five years of any immovable property belonging to any religious institution including deity require sanction by the Commissioner of Endowment. Secondly such sanction can be only made after considering the necessity or benefit thereby; accruing to the religious institution or deity. On the other hand, there should two conditions to be satisfied before any alienation being proved as valid. 15. The facts already depicted in the aforesaid para need no further revisit but it is clear that the order of sanction was shrouded with fraud being fabricated and there is no registered deed of lease executed in accordance with law. There is no material produced by the so called lessees that lease was granted for the benefit of the Lord Lingaraj or otherwise it was necessary for the religious institution to create leasehold right over the property in question. Thus, in the eye of law, there is no alienation of immovable property of the case lands to Somanath Mohapatra and Nrusingha Mohapatra by way of lease and consequently the transfer of same to subsequent transferees is equally bad and illegal. 16. It is reported in Basanti Kumar Sahoo v. State of Orissa; 81 (1996) CLT 571 (Full Bench) that the provisions in Section 19 of the Act are mandatory in nature and contravening such provisions make the transaction void. On the other hand, it transfers no right, title and interest with the transferee or lessee. 17. It is reported in 2014 (I) OLR 602 ; Chittaranjan Sahoo v. Collector, Khurda and others, where Their Lordships observes at para-22 in following manner: “22. There can also be no dispute to the settled legal proposition that the deity is a juristic perpetual minor/and disabled person, and the property belonging to a minor and/or a person incapable to cultivate the holding by reason of physical disability or infirmity requires protection. A deity is covered under both the classes. There can also be no dispute to the settled legal proposition that the deity is a juristic perpetual minor/and disabled person, and the property belonging to a minor and/or a person incapable to cultivate the holding by reason of physical disability or infirmity requires protection. A deity is covered under both the classes. The manager/trustee/pujari and ultimately the State authorities are under obligation to protect the interest of such a minor or physically disabled person. The deity cannot be divested of any title or rights of immovable property in violation of the statutory provisions. The object is laudable and based on public policy. In order to protect its interest even a worshiper having no interest in the property may approach the authority or Court.” 18. With due regard to the aforesaid decision, since the deity is perpetual minor, Section 19 is created to safeguard or protect the interest of the deity. It is, therefore, heavy duty is cast on the Administrative department, Commissioner of Endowment and other authorities working under him to make scrutiny of the requirements of the deity and the benefits for the larger interest of the deity before putting stamp of approval to go ahead with the alienation. On the other hand, the State Government, the Commissioner of Endowment or the Officers subordinate to him and the trustee of the deity must be vigilant with the fact that they are not merely custodian of the deity but also a good promoter for the welfare of the deity so as to enhance the avowed object of the Act. 19. Now adverting to the present case, when we have held in the aforesaid paras that order of permission under Section 19 of the OHRE Act is fabricated, the creation of leasehold right over the case land of deity Lord Lingaraj in favour of Somanath Mohapatra and Nrusingha Mohapatra is shrouded in fraud. It is observed above that alienation is not for the benefit of the deity or necessary for the deity, the lessees Somanath Mohapatra and Nrusingha Mohapatra acquire no kind of right in the case land and structure thereon which undoubtedly belong to Lord Lingaraj. 20. Before parting this judgment, it must be remembered by the stakeholders looking after the religious endowment institutions to take care of the deity in all respect for the best interest of the deity. 20. Before parting this judgment, it must be remembered by the stakeholders looking after the religious endowment institutions to take care of the deity in all respect for the best interest of the deity. There is no bar for the alienation but procedure must be strictly to be followed under law according to actual requirement of the deity and for absolute benefit of the deity. Any sort of fraud or the backdoor method to acquire the land of the deity is against the public policy and same should be guarded well by the regulatory authorities as available under the concerned statutes. 21. In terms of the above discussion, it is reiterated that OJC No. 5594 of 1995 and OJC Nos. 8148, 8149, 8150 and 8151 of 1998 are allowed and OJC Nos. 9703, 13458, 13459 and 13460 of 1998 are dismissed. Ordered accordingly.