Ekansh Educational Trust, Bhubaneswar & Ors. State of Odisha & Ors. … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) No.1199 of 2024 Ekansh Educational Trust, Bhubaneswar & Ors. State of Odisha & Ors. ….. Vs. ….. Petitioners Mr. G. Mukherji, Sr. Advocate along with Mr. Amlan Mishra, Advocate Opposite Parties Mr. A.R. Dash, AGA CORAM: ACTING CHIEF JUSTICE DR. B.R. SARANGI MR. JUSTICE MURAHARI SRI RAMAN ORDER 29.01.2024 Order No. 2 This matter is taken up through hybrid mode. 2.
Legal Reasoning
Heard Mr. G. Mukherji, learned Senior Counsel along with Mr. Amlan Mishra, learned counsel appearing for the petitioner and Mr. A.R. Dash, learned Additional Government Advocate appearing for the State-opposite parties. 3. When the matter was listed on 25.01.2024, this Court made a query as to whether petitioner no.1 being subsequent purchaser from the lessee, can be impleaded as petitioner. In compliance of the said order, learned Senior Counsel appearing for the petitioner has relied upon the judgment of the apex Court in Government (NCT of Delhi) v. Manav Dharam Trust & Another, (2017) 6 SCC 751, wherein the provisions contained under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 was under consideration. Referring to the said judgment, he brought to the notice of this Court paragraph- 27 of the judgment, wherein the apex Court has taken note of the judgment in Suryaprakash v. State of Karnataka, 2016 SCC OnLine Page 1 of 6 Kar 8215, in which the High Court of Karnataka at Bengaluru has considered a situation of lapse and locus standi of the subsequent purchaser to file a writ petition for a declaration on lapse, though not under Section 24(2) of the 2013 Act, and in para-16 of the said judgment, the High Court held as follows: “16. …. the principle that transferee of land after the publication of preliminary notification cannot maintain a writ petition challenging the acquisition, cannot be made applicable to a case where the acquisition itself has been abandoned and has stood lapsed due to efflux of time on account of the omission and inaction on the part of the acquiring authority, particularly because, it is because of the lapse of time and the abandonment of the acquisition, right accrues to the original owner to deal with his property including by way of the sale and the purchaser will acquire right to protect his interest. Hence, the judgment in Rajasthan State Industrial Development and we are of the view that this decision, in principle, applies to the facts of these appeals as well.” Thereafter, the apex court in paragraph-28 of the aforesaid judgment clarified the position to the following effect: “28. Thus, the subsequent purchaser, the assignee, the successor in interest, the power-of-attorney holder, etc., are all persons who are interested in compensation/landowners/affected persons in terms of the 2013 Act and such persons are entitled to file a case for a declaration that the land acquisition proceedings have lapsed by virtue of operation of Section 24(2) of the 2013 Act. It is a declaration qua the land wherein indisputably they have an interest and they are affected by such acquisition. For such a declaration, it cannot be said that the respondent-writ petitioners do not have any locus standi.” 4. Learned Senior Counsel appearing for the petitioner again has relied upon the judgment of the apex Court in Laureate Buildwell Pvt. Ltd. v. Charanjeet Singh, AIR 2021 SC 4229, in paragraph-12 whereof the apex Court recorded the contentions raised by the learned Senior Counsel for the complainant therein that since the complainant was not the original allottee but a subsequent purchaser, he could not have claimed any interest and he relied upon the judgment of the apex Court in HUDA v. Raje Ram, (2008) 17 SCC 407 and the judgment in Wing Commander Arifur Rahman Khan Page 2 of 6 and Anr. v. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and contended that in both the cases, the apex Court categorically ruled that when the allottee in a housing project transfers his or her rights in favour of another, such a third party cannot claim equities to the same extent as the original allottee, especially as regards a claim for interest. To such contentions, the apex Court, in paragraph-23 of the said judgment, held that the builder does not deny that upon issuance of the endorsement letter, the purchaser not only stepped into the shoes of the original allottee but also became entitled to receive possession of the flat. There is no denial that the purchaser fulfils the description of the complainant/consumer and is entitled to move any forum under the Consumer Protection Act for any deficiency in service. The question then is whether a subsequent purchaser is not entitled to similar treatment as the original allottee, and can be denied relief which otherwise the original allottee would have been entitled to, had she or he continued with the arrangement. To this question, the apex Court in paragraph-32 of the said judgment has specifically held that in these circumstances, given that the purchaser/Respondent had stepped into the shoes of the original allottee, and intimated Laureate about this fact in April 2016, the interest of justice demands that interest at least from that date should be granted, in favour of the Respondent. Thereby, the apex Court held that the subsequent purchaser, having stepped into the shoes of the original allottee, be treated at par with the original owner and is entitled to get the relief. 5. Now, question for consideration is whether the subsequent purchaser can be impleaded as petitioner or not. In response to the same, learned Senior Counsel appearing for the petitioner brings to the notice of this Court Order 1 Rule 1 of Code of Civil Procedure, Page 3 of 6 which reads as follows: “1. Who may be joined as Plaintiffs.-All persons may be joined in one suit as plaintiffs where- (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and (b) if such persons brought separate suits, any common question of law or fact would arise.” 6. Since the aforementioned provision itself states that any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative, they can be impleaded as party. It is contended that the petitioner, having stepped into the shoes of the original allottee, right flows to the subsequent purchaser, he can be impleaded as the petitioner. To verify this situation, it is contended that earlier the petitioner had approached this Court by filing W.P.(C) No.4728 of 2014, which has been disposed of vide order dated 04.01.2023. 7. In the above view of the matter, this Court is of the considered view that the subsequent purchaser can be impleaded as petitioner in the present proceeding in view of law, as discussed above. 8. Coming to the merits of the case, Mr. G. Mukherji, learned Senior Counsel appearing for the petitioner urged before this Court that earlier the Additional District Magistrate, Bhubaneswar, vide
Decision
order dated 28.07.2004 disposed of Lease Revision Case No.426 of 1998 sanctioning the lease in favour of Hulas Naik, the brother of the petitioner herein, over the contiguous land of a particular patch of land. Therefore, the Additional District Magistrate, Bhubaneswar cannot take contrary view in Lease Revision Case No.424 of 1998. 9. Mr. A.R. Dash, learned Additional Government Advocate does Page 4 of 6 not dispute such position. 10. Perused the order dated 13.10.2023 passed in Revision Case No.424 of 1998, by which the Additional District Magistrate, Bhubaneswar has recorded six grounds for suo-motu revision case, which states as follows: “Perused the order of the Revisional Court dated 29.04.1998. The suo-motu revision case was instituted on the ground of fraud, mis- representation, mistake of fact and procedural illegality on the following grounds. 1. Proclamation inviting objection is not made properly as provided under Rule-5(5) of O.G.L.S Rules, 1974 not the concerned G.P. Is consulted. The place and period of publication are not in conformingly with rules. 3. 2. The O.P. is silent in the lease application if he is landless on the date of application and if he has no other land elsewhere beyond this village. Omission of such vital information is implied fraud. The settlement of Govt. Land is made without observance of provision of sec-3 (2) of the Act wherein it is provided that 70% of such land should be settled in favour of persons belonging to S.C & S.T. of the village. 4. The order of priority in settlement of Govt. land as envisaged in Sec-3(3) of the Act has been violated. 5. It appears from field enquiry report that the lease land is not demarcated and is laying fallow. 6. The lease is granted for agriculture purpose but the land is not put to cultivation. The Hon’ble High Court in OJC No. 9449/93 had also observed that large scale irregularities had been made during settlement of in and around Bhubaneswar. land Even though six grounds are framed and he was required to consider the same, but he has not answered by assigning justified reason and ultimately stated that “In view of the above, I am Satisfied that, the revisional authority was right while passing the order dated 29.04.1998 in Revision case No. 424/1998. It is also a fact that, the lease was cancelled in the year 1998 giving notice to the lessee, but subsequently the wife of lessee given the power to sale the cancelled lease land in the year 2007 suppressing the fact, the other petitioner Page 5 of 6 also purchased the land in the year 2007 after a lapse of about 9 years. Hence grounds taken by the present petitioners merits little consideration and hereby rejected Accordingly, the Revision Case is disposed off.” 11. In view of such position, though this Court, vide order dated 04.01.2023 had remitted the matter to the Additional District Magistrate, Bhubaneswar, he has not applied his mind in proper perspective and passed the impugned order dated 13.10.2023 in Revision Case No.424 of 1998 which cannot be sustained in the eye of law. Consequentially, the order dated 13.10.2023 passed by the Additional District Magistrate, Bhubaneswar in Revision Case No.424 of 1998 is hereby quashed and the matter is remitted to the very same authority to reconsider the same and pass appropriate order after giving opportunity of hearing to all the parties. 12. With the above observation and direction, the writ petition stands disposed of. (DR. B.R. SARANGI) ACTING CHIEF JUDGE (M.S. RAMAN) JUDGE Alok Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: A.R-cum-Sr. Secretary Reason: Authentication Location: orissa high court Date: 30-Jan-2024 16:39:18 Page 6 of 6