Orissa High Court
Niranjan Barik vs Sri Jambeswar Mahadev …. Opposite on 26 August, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.3020 of 2024
(In the matter of an application under Articles 226
and 227 of the Constitution of India)
Niranjan Barik .... Petitioner
-versus-
Sri Jambeswar Mahadev .... Opposite
Bije, Jamara, Kendrapara
Parties
and others
Appeared in this case:-
For Petitioner : Mr. R.K. Mohanty, Sr.
Advocate assisted by Mr.
Soumya Misha, Advocate
For Opposite Parties : Mr. B.N. Bhuyan, Advocate
(For Opposite Party Nos.2 and
3)
Mr. Kishore Ku. Jena,
Advocate(Caveator)
Mr. A.P. Bose, Advocate
(For Opposite Party No.4)
Mr. Tej Kumar,
Learned Additional Standing
Counsel
(For Opposite Party Nos.5 to 8)
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 18.07.2025 / date of judgment : 26.08.2025
A.C. Behera, J. This writ petition under Articles 226 and 227 of the
Constitution of India, 1950 has been filed by the petitioner
praying for quashing(setting aside) the impugned order
dated 12.12.2023(Annexure-14) passed in R.C. No.100 of
2020 by the Additional Commissioner Consolidation and
Settlement, Kendrapara(Opposite Party No.5).
2. The petitioner in this writ petition was the Opposite
Party No.1, the Opposite Party Nos.1 to 4 as the
representatives and the Marfatdar of the deity Sri
Jambeswar Mahadev Bije, Jamara were the petitioners and
the Opposite Party No.6(Commissioner of Endowments,
Odisha, Bhubaneswar) was the Opposite Party No.2 in the
revision vide R.C. No.100 of 2020 before the Additional
Commissioner Consolidation and Settlement, Kendrapara,
(Opposite Party No.5).
3. The case of the petitioner(Niranjan Barik) in this writ
petition is that, the case land is Ac.0.260 decimals of Hal
Plot No.1623 under Hal Khata No.370 in Mouza-Jamara
under Derabish Tahasil in the district of Kendrapara, which
corresponds to Sabik Plot No.1119 Ac.0.33 decimals(part)
under Sabik Khata No.521.
Page 2 of 25
The Sabik Plot No.1119 Ac.0.33 decimals as Kissam
Gharabari under Sabik Khata No.521 in Mouza-Jamara was
recorded in the settlement of the year 1929 in the name of
the deity Sri Jambeswar Mahadev Bije, Nijgaon represented
through its Sebayat Brajasundar Dev and Marfatdar
Parikshita Panda, Kurtibas Panda and Ganesh Panda.
The above Marfatdars of the deity Sri Jambeswar
Mahadev Bije, Jamara executed a permanent lease deed in
the form of Chirastaye Patta in respect of the case land in
favour of the father of the petitioner, i.e., Ankura Barik
receiving Rs.200/-(rupees two hundred) Salami and Rs.3.53
Paise as rent and delivered possession thereof to Ankura
Barik and accordingly, the father of the petitioner, i.e.,
Ankura Barik got the case land through the aforesaid
Chirastaye Patta dated 02.03.1960(Annexure-1) and
constructed his residential house on the same in the year
1960 and since then, Ankura Barik and his family members
including the petitioner were residing in the same. After the
death of Ankura Barik, the petitioner being his son and
successor has been residing in the said house on the case
land. In the settlement of the year 1960, the case land was
Page 3 of 25
recorded under Bebandabasta status. Thereafter, during
consolidation operation, the Parchha of the case land under
Section 9(2) of the OCH and PFL Act, 1972 (Annexure-3)
was issued in the name of the father of the petitioner, i.e.,
Ankura Barik under Bebandabasta status.
4. During the said consolidation operation, one
Khageswar Jena of village Jamara on behalf of the villagers
filed Objection Case No.1555 of 1983 under Section 9(3) of
the OCH and PFL Act, 1972 in respect of the case land
before the Consolidation Officer, Kendrapara, but, as per
order dated 11.06.1986(Annexure-5) passed by the
Consolidation Officer, the said Objection Case No.1555 of
1983 filed by Khageswar Jena was rejected and thereafter,
the consolidation RoR of the case land under Consolidation
Khata No.370(Annexure-6) was published in the name of
the petitioner, as by that time, his father Ankura Barik had
expired leaving behind him(petitioner) as his successor.
After passing of the order dated 11.06.1986 vide Annexure-
5 rejecting the Objection Case No.1555 of 1983 of
Khageswar Jena by the Consolidation Officer, Kendrapara,
Khageswar Jena without preferring any appeal under
Page 4 of 25
Section 12 of the OCH and PFL Act, 1972, he(Khageswar
Jena) filed Objection Case No.1353 of 1989 under Section
15(1) of the OCH and PFL Act, 1972 before the A.C.O.,
Kendrapara, but, that Objection Case No.1353 of 1989 of
Khageswar Jena was rejected on dated 07.09.1989, as per
Annexure-7 on the ground that, the same was barred under
Section 14 of the OCH and PFL Act, 1972.
Thereafter, Khageswar Jena filed Consolidation Appeal
No.191 of 1989 before the Deputy Director, Consolidation,
Kendrapara, but, that Consolidation Appeal No.191 of 1989
of Khageswar Jena in respect of the case land was
dismissed on dated 30.05.1990 as per Annexure-8.
Thereafter, in the year 2020, Opposite Party Nos.1 to 4
as the representatives of the deity Sri Jambeswar Mahadev
Bije, Nijgaon, i.e., Jamara filed Consolidation Revision Case
No.100 of 2020 under Section 37(1) of the OCH and PFL
Act, 1972 before the Consolidation Commissioner, Odisha,
Cuttack praying for recording the case land in the name of
the deity Sri Jambeswar Mahadev suppressing the earlier
R.C. No.35 of 2019(Annexure-10) filed by them for the self-
same relief. Subsequent thereto, R.C. No.100 of 2020 was
Page 5 of 25
transferred from the court of Consolidation, Commissioner,
Odisha, Cuttack to the court of Additional Commissioner
Consolidation and Settlement, Kendrapara (Opposite Party
No.5).
5. After hearing from both the sides and without taking
into account to the note of arguments as per Annexure-12
filed by the petitioner of this writ petition, the Additional
Commissioner Consolidation and Settlement, Kendrapara
(Opposite Party No.5) passed the impugned order on dated
12.12.2023(Annexure-14) in R.C. No.100 of 2020 and
allowed that revision filed by the petitioners of that revision
(Opposite Party Nos.1 to 4 in this writ petition) and set
aside the order dated 11.06.1986(Annexure-5) passed in
Objection Case No.1555 of 1983 in respect of the case land
in favour of the petitioner of this writ petition and directed
Tahasildar, Kendrapara to record the case land in the name
of the deity Sri Jambeswar Mahadev Bije, Nijgaon, i.e.,
Jamara reflecting in the RoR to the name of Endowment
Commissioner as the Marfatdar of the deity for the benefit
of public at large assigning the reasons that,
Page 6 of 25
“when, there is no dispute that, the case land belong to the deity
Sri Jambeswar Mahadev Bije, Jamara, the same cannot be transferred
in contravention of the statutory provisions. Because, deity is a juristic
person and perpetually minor and also disabled person and in respect
of the property belonging to the minor and person incapable to cultivate
the holdings by reasons of physical disability or infirmity, the same
requires protection.
So, the land of deity, cannot be alienated by Marfatdars by way
of Hatapata and the Hatapata issued by the Marfatdar and the case
land has not been settled under the provisions of Sections 6 and 7 of
the OEA Act. For which, the settlement of the case land in the name of
Niranjan Barik(petitioner in this writ petition) during consolidation
operation by the consolidation authority without looking to the
provisions of the OEA Act is totally wrong. That part, the Hatapata
shows that, there was salami of Rs.200/- for the same, for which, the
same should have been registered. The deity Sri Jambeswar Mahadev
is a public deity and has also been indexed as 214-J.C.(M). For which,
for alienation of the case land of the deity, permission under Section 19
of the Odisha Hindu Religious Endowments Act, 1951 was required
under law, but, the Consolidation Officer has not followed such law.
Therefore, the impugned order dated 11.06.1986 passed in Objection
Case No.1555 of 1983 (Annexure-5) by the C.O., Kendrapara in favour
of Niranjan Barik(petitioner in this writ petition) is set aside. The same
is to be recorded in the name of the deity Sri Jambeswar Mahadev Bije,
Nijgaon, Jamara reflecting the name of Endowments Commissioner as
the Marfatdar of the deity.”
6. On being aggrieved with the said impugned order
dated 12.12.2023(Annexure-14) passed in R.C. No.100 of
2020 by the Additional Commissioner Consolidation and
Settlement, Kendrapara (Opposite Party No.5) against the
Page 7 of 25
petitioner(Niranjan Barik), he(petitioner) challenged the
same by filing this writ petition praying for quashing(setting
aside) that impugned order dated 12.12.2023 (Annexure-
14).
7. I have already heard from the learned senior counsel
for the petitioner, learned senior counsel for the Opposite
Party Nos.2 and 3, learned counsel for the Opposite Party
No.4 and learned Additional Standing Counsel for the
Opposite Party Nos.5 to 8.
8. During the course of hearing, in order to assail the
impugned order dated 12.12.2023(Annexure-14), the
learned senior counsel for the petitioner relied upon the
followings decisions:-
(i) Satyadhyan Ghosal Vs. Deorajin Debi : AIR 1960
SC 941.
(ii) Direct Recruit Class-II Engineering Officers’
Association Vrs. State of Maharashtra: AIR 1990 SC
1607.
(iii) Hope Plantations’ Ltd. Vrs. Taluk Land Board:
(1999) 5 SCC 590.
(iv) National Institute of Mental Health & Neuro
Sciences Vs. C. Parameshwara: (2005) 2 SCC 256.
(v) K.K. Modi Vs. K.N. Modi : (1998) 3 SCC 573.
(vi) P.K. Ramachandran Vs. State of Kerala : (1997) 7
SCC 556.
(vii) Basawaraj Vs. Special Land Acquisition Officer :
(2013) 14 SCC 81.
Page 8 of 25
(viii) Ramadhar Vs. Additional Commissioner : 2004 (3)
AWC 2311.
9 SCC 126.
(x) T. Arivandandam Vs. T.V. Satyapal : AIR 1977 SC
2421.
(xi) Ghulam Qadir Vs. Special Tribunal : (2002) 1 SCC
33.
(xii) Hari Mohan Vs. Gouranga Mohan : AIR 1971
Orissa 137.
(xiii) State of Bihar Vs. Radha Krishna Singh : AIR
1983 SC 684.
(xiv) Kranti Associates Vs. Masood Ahmed Khan : (2010)
9 SCC 496.
(xv) Ravi Yashwant Bhoir Vs. District Collector : (2012)
4 SCC 407.
(xvi) State of Punjab Vs. Balkaran Singh : (2006) 12
SCC 709.
(xvii) Tata Iron and Steel Co. Ltd. Vs. Union of India :
AIR 1996 SC 2462.
9. On the contrary, in support of the impugned order,
learned counsel for the Opposite Party Nos.2, 3 and 4 relied
upon the following decisions:-
(i) 2017(Suppl.II) OLR-872(OJC No.13460 of 1998) :
Gouranga Ch. Das vrs. State of Odisha.
(ii) 2017(II) OLR-389(SA No.198 of 1995) : State of
Odisha vrs. Pitabasa Swain and others.
(iii) 2008(Supp.I) OLR-521 : Arikhita Sahu vrs.
Krishnaveni (RSA No.162 of 2002)
(iv) 2017(I) OLR-728(CMP No.1444 of 2016) : Abani Kr.
Mehera and others vrs. District Collector, Bargarh.
(v) AIR Online 2021 SC-690 = AIR 2021 (SC)-4245(Civil
Appeal No.4850 of 2021 dated 06.09.2021) : State of
M.P. vrs. Pujari Utthan AVAM Kalayan Samiti.
(vi) 103(2007) CLT-296(OJC No.2089/1992) :
Khetramohan Dwary and others vrs. SDO, Baripada.
(vii) 2015(II) OLR-311 = AIR 2015(NOC) 75 (Ori.) :
Niranjan Mekap vrs. State of Odisha.
(viii) AIR Online 2024 Orissa-467(S.A. No.186 of 1999) :
Kanhu Majhi vrs. Kartik Dehury.
Page 9 of 25
(ix) AIR 1964 Patna-1 : 1963 BLJR-895 : Ram Nath
Mandal and others vrs. Jojan Mandal and others.
(x) AIR 1955 S.C.-328(Civil Appeal No.81 of 1952
dated 03.02.1955) : Sri S.Sita Manharani and others
vrs. Chhedi Mahto and others.
10. On the basis of the impugned order dated
12.12.2023(Annexure-14) passed in R.C. No.100 of 2020 by
the Additional Commissioner Consolidation and Settlement,
Kendrapara(Opposite Party No.5) and the rival submissions
of he learned counsels of both the sides, the crux of this
writ petition are :-
(i) Whether the deity Sri Jambeswar Mahadev Bije
Nijgaon is a public deity or a private deity?
(ii) Whether an un-registered Chirastaye Patta(Annexure-
1) issued by Sri Parikhita Panda, Madhusudan Panda
projecting them as the representatives of the deity Sri
Jambeswar Mahadev(owner of the case land) in favour of the
father of the petitioner, i.e., Ankura Barik is valid under law
and whether by such un-registered Chirastaye Patta dated
07.03.1960 vide Annexure-1, title and possession of the case
land was transferred in favour of the father of the petitioner
as per law?
(iii) Whether an order for recording the case land in the
name of the petitioner passed in Objection Case No.1555 of
1983 (Annexure-5) and preparation of the consolidation RoR
as per Annexure-6 in the name of the petitioner by the
consolidation authorities without recording the same in the
name of the deity Sri Jambeswar Mahadev is valid under
law?
(iv) Whether the impugned order dated 12.12.2023 vide
Annexure-14 passed in R.C. No.100 of 2020 by the Additional
Commissioner Consolidation, Kendrapara (Opposite Party
No.5) in setting aside the order dated 11.06.1998 passed in
Objection Case No.1555 of 1983 by the C.O., Kendrapara and
directing for recording of the case land in the name of Sri
Jambeswar Mahadev is legally sustainable under law?
Page 10 of 25
11. In order to have a better appreciation and so also for
just decision of this writ petition under Articles 226 and
227 of the Constitution of India, 1950, the above four points
fixed for determination are required to be discussed and
analysed serially and chronologically one after another.
12. So far as the 1st point, i.e., whether the deity Sri Jambeswar
Mahadev Bije Nijgaon is a public deity or a private deity is concerned !
The petitioner in this writ petition, i.e., Niranjan Barik
has specifically stated in Para No.3 of his writ petition that,
the case land is Hal Plot No.1623 under Hal Khata No.370,
which corresponds to Sabik Plot No.1119(part) under Sabik
Khata No.521.
The Sabik Khata No.521 was recorded in the name of
the deity Sri Jambeswar Mahadev Bije, Nijgaon represented
through Sabayat and Marfatdars indicated therein.
It appears from the Sabik RoR vide Annexure-A under
Sabik Khata No.521 that, the said Sabik Khata No.521 of
the case land was recorded in the name of the deity Sri
Jambeswar Mahadev Bije, Nijgaon, Sebayat Brajasundar
Page 11 of 25
Dev, Marfat Parikhita Panda, Krutibas Panda and Ganesh
Panda as Chirastayi Niskar land.
13. Now, it will be seen, whether the deity Sri Jambeswar
Mahadev Bije, Nijgaon is a private deity or a public deity.
As per Lexicon of Revenue terms, Bije means–Abbreviated form
of Bijesthali or appearance of an idol or idols at a chosen place.
„Bijesthali‟ means–Capital seat of an idol, the holly place where
an idol is worshiped.
„Nijgan‟ means–The village, to which, the record belongs, a
resident of the village, to which, the record relates.
A private deity has not been defined in Orissa Hindu Religious
Endowments Act, 1951. But, deity or endowment, which is not a
religious institution, is to be considered as a private deity.
14. On this aspect, the propositions of law has already
been clarified in the ratio of the following decision:-
(i) In a case between Basanta Kumar Pradhan vrs. Sri
Laxmidhar Sahoo and others : reported in 2006(Supp.II)
OLR-558(Para-10)–That, as “private deity” has not been
defined in the Act. A deity or endowment, which is not a
religious institution, is to be considered as a private deity.
The meaning of “institution” has been clarified in the Law
Lexicon.
Page 12 of 25
As per Law Lexicon–“Institution” means, an
establishment of a public character, i.e., whose cause is not
personal, but, public.
So, an institution is one, whose cause is not personal,
but, public and which does not carry on business, making
profits and whose benefit be not made in private account.
The meaning of an institution, has already been
clarified in the ratio of the decision between K.V. Mathew
vrs. District Manager, Telephones, Ernakulam :
reported in AIR 1984 (Kerala)-40 that,
“An institution is one, whose cause is not personal, but
public, and which does not carry on business, making profits
and whose profit be not made in private account.”
When, Bijestali of an idol, i.e., deity, i.e., Sri Jameswar
Mahadev Bije is Nijgan, i.e., village Jamara to be worshiped
by all the villagers of Jamara and its nearby villagers and it
is a religious establishment of public character, but, not a
personal in character, then, at this juncture, by applying
the meanings of the words clarified above in the Lexicon of
revenue terms, it is held that, the deity Sri Jambeswar
Mahadev Bije, Jamara is not a private deity, but, a public
deity.
Page 13 of 25
For which the observations made by the C.O. in
Annexure-5 that, the deity Sri Jambeswar Mahadev is a
private deity cannot be held as correct. Therefore, the
findings given by the revisional authority in the impugned
order vide Annexure-14 that, the deity Sri Jambeswar
Mahadev is a public deity is held to be correct.
15. So far as the 2nd point, i.e., whether an un-registered Chirastaye
Patta(Annexure-1) issued by Sri Parikhita Panda, Madhusudan Panda
projecting them as the representatives of the deity Sri Jambeswar
Mahadev in favour of the father of the petitioner, i.e., Ankura Barik is
valid under law and whether by such un-registered Chirastaye Patta
dated 07.03.1960 vide Annexure-1 title and possession of the case
land was transferred in favour of the father of the petitioner as per law
is concerned !
When, as per the discussions and observations made
above in the forgoing point no.1, it has already been held
that, the deity Sri Jambeswar Mahadev is a public deity and
the case land belong to the deity Sri Jambeswar Mahadev,
then, in order to transfer or alienate the case land of the
deity by anybody, prior permission of the Endowments
Commissioner was/is necessary.
Page 14 of 25
16. On this aspect, the propositions of law has already
been clarified in the ratio of the following decisions:-
(i) In a case between Chintamani Sahoo(dead) and
after him Subodh Kumar Sahoo and others vrs.
Commissioner of Orissa Hindu Religious Endowments,
Orissa and others : reported in 56(1983) CLT-47(D.B.)
that, as per Section 58 of the Hindu Religious Endowment
Act, Orissa 1939-alienation of endowment property without
permission of Endowment Commissioner over though for
consideration is void ab nitio, i.e., alienation made in
contravention of the statutory provisions, which is enacted
for public interest is void. Because, Section 58(1) prohibits
grant of lease more than five years without prior permission.
For which, the transfer by permanent lease without prior
permission of the Endowment Commissioner is void.
(ii) In a case between Padma Charan Sahu and another
vrs. Khageswar Patra and others : reported in 2024(2)
OLR-808 that, prior permission under Section 19(1) of the
Orissa Hindu Religious Endowments Act, 1951 is necessary
for alienation / transfer of the properties of the deity. So,
alienation of the properties of the deity in contravention of
Section 19(1) of the Orissa Hindu Religious Endowments Act,
1951 is invalid/illegal and void.(Para Nos.19 and 20)
It appears from the impugned order vide
Annexure-14 that, Sri Jambeswar Mahadev being a public
deity has been indexed as 214-J.C.(M) before the
Commissioner, Orissa Hindu Religious and Endowments.
For which, in view of the propositions of law enunciated in
the ratio of the aforesaid decisions, the transfer of the case
land of the deity Sri Jambeswar Mahadev made by Parikhita
Panda and Madhusudan Panda stating them as the
representatives of the deity Sri Jambeswar Mahadev
through unregistered Chirastaye Patta dated 07.03.1960
Page 15 of 25
vide Annexure-1 in favour of the father of the petitioner, i.e.,
Ankura Barik without prior permission of Commissioner of
Endowments as per Section 19(1) is void.
17. It appears from the Annexure-A(Sabik RoR of the case
land) that, the names of Parikhita Panda, Krutibasa Panda
and Ganesh Panda were reflected as Marfatdars of the deity
Sri Jambeswar Mahadev and the name of Brajasundar Dev
was indicated/reflected as Sebayat of the deity Sri
Jambeswar Mahadev, but out of the above Marfatdars, i.e.,
Parikhita Panda, Krutibasa Panda and Ganesh Panda, only
Parikhita Panda has executed the unregistered Chirastaye
Patta dated 07.03.1960(Annexure-1) in respect of the case
land in favour of the father of the petitioner, i.e., Ankura
Barik.
18. Law on this aspect regarding the power of alienation of
the properties of a deity by its Marfatdars has already been
clarified in the ratio of the following decisions:-
(i) In a case between Sairendri Devi and others vrs.
Kamuna @ Kamrunisha and others : reported in 2018(1)
CLR-1228(Para 10 and 11) that, Marfatdar cannot alienate
the property belonging to Deity without permission under
Section 19 of the Orissa Hindu Religious Endowments Act,
1951.
Page 16 of 25
(ii) In a case between Smt. Bimala Kabi Satapathy vrs.
Collector, Khurda and others : reported in 2014(1) OLR-
602(D.B.)(Para-19) that, sale of the land belonging to the
deity without sanction is expressly barred under Section 19-–
Such sanction can be accorded, when sale is necessary for
the beneficial of the institution–Provisions for seeking
permission under Section 19(1) are mandatory in nature and
any alienation made in contravention of the said provision is
void.
(iii) In a case between Sri Mangala Thakurani Bije,
Kakatpur and others vrs. State of Orissa and others :
reported in 110(2010) CLT-574 that, when the land recorded
in the name of the deity represented through its Marfatdars,
the said land belong to the deity not to the marfatdars.
(iv) In a case between Deben Sethi and others vrs. State
of Orissa and others : reported in 2012(Supp.1) OLR-
656(Para-12) that, land belonging to the deity cannot be
subject to alienation in violation of statutory requirement.
(v) In a case between Sarata Chandra Mohanty and
another vrs. Administrator of Jagannath Temple, Puri :
reported in 42(1976) CLT-1241 that, the word „Marfatdar‟ is
applied to those, who look-after the management and routine
duties in connection with the endowment. The marfatdars,
therefore, cannot take up the position that, the said
properties are their own properties.
19. In view of the propositions of law enunciated in the
ratio of the aforesaid decisions, alienation of the case land
of the deity Sri Jambeswar Mahadev in favour of the father
of the petitioner, i.e., Ankura Barik through an unregistered
Chirastaye Patta vide Annexur-1 by Parikhita Panda(one
among the Marfatdars) and Madhusudan Panda(who is not
the Marfatdar) stating/projecting them, as the
representatives of the deity Sri Jambeswar Mahadev
without prior permission of the Endowments Commissioner
is void and non-est in the eye of law.
Page 17 of 25
20. That apart, as per Sections 107 and 117 of the T.P.
Act, 1882 read with Section 17 of the Indian Registration
Act, 1908, a lease of immovable property other than
agriculture purpose for a term exceeding one year without
registered instrument is void.
Likewise, Section 107 of the T.P. Act, 1882 read with
Section 17 of the Registration Act also provides that, a
conveyance through a written instrument of immovable
property for more than Rs.100/- must be registered.
21. Here, in this matter at hand, it appears from the so-
called Chirastaye Patta(Annexure-1) said to have been
executed in respect of the case land in favour of the father
of the petitioner, i.e., Ankura Barik that, the same was for
homestead purposes(which is other than agriculture) for
Rs.2,000/-. For which, without registration of that
Annexure-1, as per law, the same cannot transfer the title
of the case land in favourf of Ankura Barik.
22. On this aspect, the propositions of law has already
been clarified by the Apex Court in the ratio of the following
decisions :-
Page 18 of 25
(i) In a case between Samir Mukherjee vrs. Davinder K.
Bajaj and others : reported in AIR 2001 S.C.-1696, in a
case between Shri Janki Devi Bhagat Trust, Agra vrs.
Ram Swarup Jain(dead) by LRs. : reported in AIR 1995
SC-2482 that, a lease of immovable property from year to
year or for a term exceeding one year can be made only by
registered instrument and any lease of this kind would be
void, unless it is created by a registered instrument.
(ii) In a case between State of Orissa and others vrs.
Harapriya Bisoi : reported in 2009(II) OLR (SC)-229(D.B.)
that, Section 107 of the T.P. Act read with Section 17 of the
Indian Registration Act–It mandates that, the conveyance of
title through legal a written instrument of any immovable
property worth more than Rs.100/- for a period of one year or
more must be registered.
23. As per the discussions and observations made above,
due to lack of registration of Annexure-1, the same does not
enure any benefit in favour of the petitioner in respect of
the case land.
24. So far as the third point, i.e., whether an order for
recording the case land in the name of the petitioner passed
in Objection Case No.1555 of 1983 (Annexure-5) and
preparation of the consolidation RoR as per Annexure-6 in
the name of the petitioner by the consolidation authorities
without recording the same in the name of the deity Sri
Jambeswar Mahadev is valid under law is concerned !
As per Sabik RoR as well as own admission of the
petitioner in the writ petition, the Sabik RoR of the case
Page 19 of 25
land under Khata No.521 was recorded in the name of the
deity Sri Jambeswar Mahadev as Chirastaye Niskar.
25. The meaning of „Charastayi Niskar‟ as per Lexicon of
the revenue term is that,
permanently rent free, a kind of tenancy, where no rent was
accessible.
If a particular tenancy was found to be rent free in perpetuity,
an entry “Chirastaye Niskar was made in the rent columns of the
Khatian.
If it was rent free, only when settlement was made, but
assessable to rent at a future date, in that case, entry is to be made as
Niskar Jamadharjya.”
26. It is the own case of the petitioner, according to the
averments made in Clause-(IV) of Para-3 of his writ petition
that, in the Hal Settlement, the case land was recorded in
Khata No.2 as „Bebandabasta‟, but, the petitioner has not
annexed the Hal RoR of the said Khata No.2 of the case
land in his writ petition.
27. When, it is the own case of the petitioner that, the
case land was Bebandabasta land, i.e., without rent in the
Hal RoR under Khata No.2, then, it pre-supposes that, the
same was a rent free land without being settled.
Page 20 of 25
In case of Bebandabasta land, powers of settlement
thereof lies with the OEA Tribunal under Orissa Estate
Abolition Act, but, not with the consolidation authorities.
The consolidation authorities have no jurisdiction to
enter into the arena/jurisdiction of the OEA Tribunals or
the authorities under OEA Act.
Because, as per law, the consolidation authorities are
bound by the orders passed by the authority in any State
Act like orders passed under Sections 6, 7 and 8 of the OEA
Act.
28. On this aspect, the propositions of law has already
been clarified in the ratio of the following decisions:-
(i) In a case between Bijay Ketan Brahma and others
vrs. State of Orissa and others : reported in 108(2009)
CLT-657 (Para-12) that, law is well settled that, the
consolidation authorities are bound by any order passed
under any of the State Act like under Section 8(1) of the
O.E.A. Act.
29. When, it is the own case of the petitioner that, in the
Hal Settlement, the case land was recorded as
„Bebandabasta‟ land, i.e., as rent free land and the case
land has not been settled in the name of the petitioner
under OEA Act as yet and when, in the Sabik and Hal
Page 21 of 25
Settlement, the case land was recorded in the name of the
deity Sri Jambeswar Mahadev Bije, Nijgaon, Jamara, then
at this juncture, the consolidation officer had no
jurisdiction to pass an order in Objection Case No.1555 of
1983 vide Annexure-5 to record the case land in the name
of the petitioner. For which, the order passed by the
Additional Commissioner Consolidation and Settlement,
Kendrapara (Opposite Party No.5) as per Annexure-14
setting aside the order passed by the Consolidation Officer
(Opposite Party No.7) under Annexure-5 and passing order
for recording the case land in the name of the deity Sri
Jambeswar Mahadev cannot be held as illegal.
30. In order to assail the impugned order passed by the
Additional Commissioner Consolidation and Settlement,
Kendrapara (Opposite Party No.5), the learned senior
counsel for the petitioner contended that, when the revision
under the R.C. No.100 of 2020 was filed by the petitioner,
29 years after passing of the order under Annexure-5 by the
Consolidation Officer in Objection Case No.1555 of 1983 in
favour of the petitioner, then, the revision under Section 37
Page 22 of 25
of the OHC and PFL Act before the Commissioner was not
entertainable under law.
31. On this aspect, the propositions of law has already
been clarified in the ratio of the following decisions:-
(i) In a case between Siba Muduli and others vrs.
Director, Consolidation, Odisha, Cuttack and others :
reported in 2021(II) CLR-957(D.B.) that, the
Commissioner/Director can entertain a petition under
Section 37 of the OCH and PFL Act, 1972 at any point of
time, as there is no period of limitation prescribed for the
same in that Section. The Commissioner/Director can
exercise jurisdiction under Section 37 of the Act within a
reasonable time which may extend even to 20 to 30 years in
cases where the fact of the case involved any of the following
factual/legal aspects, i.e.,:-
(a) When the order impugned is passed on the
basis of fraud or fraudulent mis-representation made
by a party or based on a fraudulent document;
(b) When the order was passed is inherently
without any jurisdiction or is passed by a person, who
has no authority to pass such an order;
(c) When an order is passed adversely effecting the
interest of a minor without being represented by legal
guardian and it includes the perpetual minor like
deity;
(d) When any Government land or community land
has been grabbed by an abuse of process of law; and
(e) When the order impugned before the Revisional
Authority is passed in complete disregard to the
provisions of law guiding the field.(Para Nos.11 & 12)
(ii) In a case between Sri Brajabandhu Pati vrs.
Collector-cum-Trustee, Debattar, Dhenkanal and others :
reported in 2010(1) CLR-27(Para-10) that, since the deity is
a perpetual minor and the property belonging to a minor
requires protection, it is the obligation of the authorities to
protect the interest of the minor.
(iii) In a case between Niranjan Mekap and others vrs.
State of Orissa and others : reported in 2015(1) CLR-998
(Para-34) that, deity being a perpetual minor, it is the
primary duty of the State and its authorities to protect the
interest of the deity. In a case of any allegation of failure on
the part of the State and its instrumentalities to do so,
Page 23 of 25
finally, the Court has to protect the interest of the deity, who
is a perpetual minor.
32. When, as per the in the findings and observations
given in the forging point nos.1, 2, and 3, it has already
been held that, an order, which was passed in Objection
Case No.1555 of 1983 passed by the C.O., Kendrapara as
per Annexure-5 was inherently illegal and when, the case
land belong to the deity Sri Jambeswar Mahadev, (who is a
perpetual minor) and when, such order vide Annexure-5
was passed in respect of the case land adversely affecting
the interest of the minor, i.e., deity Sri Jambeswar
Mahadev, then at this juncture, by applying the principles
of law enunciated in the ratio of the aforesaid decisions, it is
held that, the impugned order vide Annexure-14 passed by
the Additional Commissioner Consolidation and Settlement,
Kendrapara (Opposite Party No.5) in R.C. No.100 of 2020 is
neither illegal nor unreasonable. For which, the question of
interfering with the same through this writ petition filed by
the petitioner does not arise.
33. Therefore, the decisions relied by the learned counsel
for the petitioner indicated in Para No.8 of this judgment
Page 24 of 25
are not applicable to this matter at hand on facts and law
as discussed above.
As such, there is no merit in the writ petition filed by
the petitioner. The same must fail.
34. In result, the writ petition filed by the petitioner is
dismissed on contest.
35. Accordingly, this writ petition filed by the petitioner is
disposed of finally.
(A.C. Behera)
Judge
Orissa High Court, Cuttack
The 26th of August, 2025/ Jagabandhu, P.A.
Signature Not Verified
Digitally Signed
Signed by: JAGABANDHU BEHERA
Designation: Personal Assistant
Reason: Authentication
Location: OHC, CUTTACK
Date: 26-Aug-2025 18:27:12
Page 25 of 25
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