The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.4768 of 2016 KushasanMohanty State of Odisha and others -versus- …. …. Petitioner Opposite Parties Advocates appeared in this case : For Petitioner : Mr. P.K. Rath, Advocate For Opposite Parties : Mr. G.N. Rout, A.S.C. CORAM: JUSTICE ARINDAM SINHA JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------------- Dates of hearing: 31.01.2023, 11.04.2023 and 18.04.2023 Date of Judgment: 18.04.2023 --------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Petitioner is a lessee. He has constructed his house on the leasehold. He has disclosed Scheme of Conversion of Residential Lands of General Administration Department within Bhubaneswar Municipal Corporation Area from Leasehold System of Land Tenure to Freehold Tenure, 2003, in the petition. Page 1 of 7 2.
Legal Reasoning
There is no dispute that petitioner had applied for conversion by his application dated 10th December, 2003. The conversion fee assessed on commercial basis and informed to petitioner was much later, by communication dated 29th May, 2008. Petitioner in not depositing the demanded fee had sought for re-verification on user of the premises. It will appear from above quoted letter dated 24th June, 2008 of petitioner that the assertion was, not having given the building on rent. Subsequently, by letter dated 18th October, 2008 petitioner had sought re-verification regarding commercial user. There was re-verification and report dated 14th November, 2008 as aforesaid. We reproduce below the report. “Verified the site bearing drawing plot no.N-6/295 of mouza: Jayadev Vihar Unit no.16 and on during field enquiry the lessee was present and he says he is residing in his building and another person Sri Manoj Ku. Ojha working as Pharmacist under Usti Hospital is residing WP(C) no.4768 of 2016 Page 4 of 7 there over one portion of building in rear side. The details use of building is given below. Ext. Single storied building making deviation of approved plan (full deviation) Lessee with his family residing (Sri Kushasan Mohanty) Major portion of building Part of building in rear the relative of used by lessee Sri Manoj Ku. Ojha with family working as his Pharmacist under Usti Hospital The lessee says he has not given let out on hire to Sri Manoj Ku. Ojha. Submitted for kind information and n.a.” (emphasis supplied) 5. We have perused materials on record. There does appear the administration was under impression that petitioner had let out to a person staying in the building. However, for the purpose of determining the fees payable for conversion, it had to be ascertained as to whether petitioner was using the building or part thereof for commercial purpose by having let it out on rent. It is immaterial as to whether the tenant was related or not related to petitioner. Payment and acceptance of rent was required to be established, for a demand WP(C) no.4768 of 2016 Page 5 of 7 made of conversion fee on commercial basis. This appears not to have been done. 6. We have scrutinized petitioner’s letters dated 24th June, 2008 and 18th October, 2008. He was consistent in saying that he had not collected any rent for having let out a part of the building. It will appear from the reproduction of said report dated 14th November, 2008 that in perception of the person making the enquiry, part of the building in rear was found to be used by the relative of the lessee. However, the report says that during field enquiry, the lessee was present and he said he is residing in his building and Sri Ojha was also residing in a portion. Lastly the reporter commented that the lessee said he had not given or let out on hire to Sri Manoj Ojha. The person making the enquiry did not report petitioner to have claimed that Mr. Ojha was his relative. The enquiry also did not reveal transaction of tenancy in the premises. 7. It is true that pursuant to interlocutory order made in the writ petition, the affidavit has come in, from which it is clear that the person who was allowed to stay in the building was not and is not related to petitioner. It is significant that two enquires did not reveal a WP(C) no.4768 of 2016 Page 6 of 7 single rent receipt or at least, a statement made by some person that petitioner had given on rent to Sri Ojha. 8. For reasons aforesaid, we direct opposite party no.2, in peculiar facts and circumstances of this case, to re-assess demand for conversion fee, to be paid by petitioner, on commercial basis as prevailing in year 2015 since, by his said affidavit dated 17th April, 2023 petitioner admits he had let out in that year. The demand, as assessed, is to be informed to petitioner within three weeks from date, giving him 30 days to pay the demand, failing which the facility of conversion will stand automatically cancelled or revoked. 9.
Arguments
Mr. Rath, learned advocate appears on behalf of petitioner and submits, pursuant to aforesaid scheme, his client applied for conversion on 10th December, 2003. There was purported enquiry made and assessment, to result in demand of Rs.28,926/- as conversion fee for commercial user of the plot, informed to petitioner by communication dated 29th May, 2008. His client protested by letter dated 24th June, 2008. Text of the letter is reproduced below. “With reference to G.A. Department letter No.CA(NP)230/08 8459/CA dt. 29.05.2008 directing me to deposit a sum of Rs.28,926/- for conversion of lease hold plot into free hold I am to request you that the amount fixed for payment by me is much higher. I have neither constructed the first floor building over the ground floor till today nor given the building on rent. As myself and my family are residing in the building this may be treated as residential category. I, therefore, request your honour to kindly take steps for re-verification and accordingly revise the amount for which I shall remain ever grateful.” (emphasis supplied) His client sent further letter dated 18th October, 2008, again requesting, inter alia, re-verification. The administration conducted another enquiry. Report of the enquiry is dated 14th November, 2008. WP(C) no.4768 of 2016 Page 2 of 7 Mr. Rath submits, comment expressed in the report is that his client said he had not given, let out on hire to Sri Manoj Kumar Ojha, who was occupying a portion of the building. Mr. Rath submits further, there was exchange of correspondence, including threat by the administration to treat as automatically cancelled, the sanction of conversion unless fee of Rs.28,926/- was deposited. This resulted in his client approaching the Hon’ble Chief Minister. Thereupon impugned communication dated 8th April, 2015 was issued by the administration. He submits, the communication said his client cannot now be allowed to deposit the conversion fee, which was calculated basing on bench mark value prevailing in year 2008, as the same had been revised thrice, in 2009, 2012 and 2014. Impugned communication should be set aside and quashed. His client’s request for assessment of the conversion fee on his said application dated 10th December, 2003 restored for consideration. 3. Mr. Rout, learned advocate, Additional Standing Counsel appears on behalf of State. He submits, during course of hearing and pursuant to direction made, affidavit dated 17th April, 2023 has been filed by petitioner. It clearly vindicates stand taken by State in having initially assessed and issued demand for conversion fee to be WP(C) no.4768 of 2016 Page 3 of 7 deposited, on said conversion application dated 10th December, 2003. Also thereafter in dealing with petitioner’s request to assess the fee on residential basis and ultimately his acceptance, much later, of the conversion fee assessed in year 2008. He submits, there should not be interference. 4.
Decision
The writ petition is disposed of. ( Arindam Sinha ) Judge ( S. K. Mishra ) Judge P. Pradhan WP(C) no.4768 of 2016 Page 7 of 7