The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 1607 OF 2024 (An application under Article 226 of the Constitution of India) Smt. Annapurna Das * * * * -versus- …. Petitioner State of Odisha and others …. Opp. Parties Advocates appeared: For Petitioner : Mr. Tusar Kumar Mishra, Advocate For Opp. Parties : Mr. D.K. Mohanty, Addl. Standing Counsel (For Opp. Party Nos.1 & 2) Mr. D.K. Mohapatra, Advocate (For Opp. Party Nos.3 & 4) Mr. Achyutananda Pattanaik, Advocate (For Opp. Party No.5) CORAM: JUSTICE K.R. MOHAPATRA ---------------------------------------- Heard and disposed of on 05.04.2024 --------------------------------------- JUDGMENT 1. This matter is taken up through hybrid mode. 2. Letter No.1529 dated 30th December, 2023 (Annexure-4) issued by the Secretary, Rourkela Development Authority (RDA) to the Petitioner is under challenge in this writ petition. 3.
Legal Reasoning
Mr. Mishra, learned counsel for the Petitioner submits that transfer of House No.M/11, Durgapur Foot Hill Housing Project, Stage-II, Basanti Colony, Rourkela (for short ‘the case Page 1 of 10 // 2 // house’) is the subject matter of dispute in this writ petition. The case house was allotted to Sri Basanta Kumar Das, husband of the Petitioner, by RDA and lease-cum-sale deed was executed in his favour. Said Basanta Kumar Das died leaving behind the Petitioner (widow), three sons and one daughter. The Opposite Party No.5, namely, Paresh Kumar Das, is one of the sons of late Basanta Kumar Das. After death of said Basanta Kumar Das, all of his children submitted NOC in the shape of an affidavit before RDA to mutate the case house in the name of the Petitioner. Accordingly, fresh allotment order was issued in favour of the Petitioner and subsequently, lease-cum-sale deed under Annexure-2 was executed by RDA in favour of the Petitioner. On and from the date of execution of the lease-cum-sale deed, the Petitioner became the absolute owner of the possession of the case house in exclusion of others. The Petitioner is an unfortunate widow of 90 years old and losing all hopes to get help from her children for her treatment intended to alienate the case house and made an application to the RDA for third party transfer of the case house. Receiving the application, the RDA invited objection from the co-sharers. The Opposite Party No.5 raised objection to such application. In the objection, the Opposite Party No.5 stated that the case house is the ancestral property of the family. Basanta Kumar Das was the common ancestor and after his death, all his legal heirs including the Petitioner have equal share in the case house. Due to love and affection for their mother, the children of Basanta Kumar Das had executed a NOC in her favour. Thus, the Petitioner does not have any absolute alienable right over the case house. Page 2 of 10 // 3 // Considering the objection raised, the impugned order under Annexure-4 has been passed holding that after death of the original allottee, all the legal heirs have equal right, title and interest over the said property. It was also indicated in Annexure-4 that, one of the legal heirs, namely, Sri Paresh Kumar Das (Opposite Party No.5), was filing repeated objections mentioning that his mother had no right, title and interest to transfer the said house alone. So, the application for transfer of the case house was rejected on the ground that without receipt of relinquishment deed/NOC from other co- sharers, transfer of the case house cannot be made by the Petitioner alone. 3.1 Mr. Mishra, learned counsel further submits that pursuant to the lease-cum-sale deed executed in favour of the Petitioner by RDA under Anenxure-2, she became the absolute owner of the suit property. As per the terms and conditions of the lease-cum-sale deed under Annexure-2, the Petitioner is the sole lessee and has exclusive alienable right over the suit property with prior permission of RDA. Neither the Opposite Party No.5 nor any other legal heirs of late Basanata Kumar Das, has any right, title, interest or possession over the suit property. Thus, letter under Anenxure-4 is not sustainable and is liable to be set aside. He, therefore, prays that direction may be made to the RDA to accord permission to the Petitioner for third party transfer of the case house. The Petitioner had self-acquired property in her name at Basanati Colony, Rourkela allotted by Orissa State Housing Board, i.e. House No. BL-199 (LIG), under composite housing Scheme, Phase-I which she gifted to Page 3 of 10 // 4 // the Opposite Party No.5 out of love and affection taking permission of the Orissa State Housing Board by executing registered gift deed dated 20th December, 2019 (Annexure-5). The Opposite Party No.5 having a greedy eye on the case house is creating hurdles for the Petitioner for third party transfer. As such, the Opposite Party No.5 or any other legal heirs of late Basanta Kumar Das, have no right, title, interest or possession over the case house. He, therefore, prays for the aforesaid relief. 4. Mr. Mohapatra, learned counsel for Opposite Party Nos.3 and 4-RDA submits that pursuant to the application submitted by the Petitioner for third party transfer of the case house, the RDA called for objection. The Opposite Party No.5 raised objection challenging the absolute right, title and interest of the Petitioner over the case house. As such, the RDA has committed no error in rejecting the application for third party transfer and suggesting the parties to settle the dispute in competent Civil Court. No fault can be attributed to the RDA in calling for the objection upon receipt of the application of the Petitioner in order to comply with principles of natural justice.
Decision
He, therefore, prays for dismissal of the writ petition. 5. Mr. Mohanty, learned Additional Standing Counsel submits that the dispute in this writ petition relates to third party transfer of the case house allotted by RDA. As it is an inter se dispute between the Petitioner vis-à-vis Opposite Party No.5 involving transfer of the case house allotted by RDA, the State of Odisha has nothing to say in it. 6. Mr. Pattnaik, learned counsel for the Opposite Party No.5 submits that admittedly, the case house was allotted in Page 4 of 10 // 5 // favour of late Basanata Kumar Das, the common ancestor of the Petitioner and Opposite Parties. On his death, succession to the case house opened. The Petitioner, namely, widow of late Basanta Kumar Das and all their children succeeded to the case house. All of them have equal right, title and interest over the case house. Only because a lease-cum-sale deed has been executed in favour of the Petitioner on consent of legal heirs of late Basanta Kuamr Das, the same does not confer absolute right on the Petitioner in respect of the case house. The Opposite Party No.5 is ready and willing to maintain the Petitioner and assist her and extend financial assistance, if she requires. It is at the instance of the elder son of late Basanata Kumar Das, the Petitioner ignoring the right of Opposite Party No.5 over the case house is trying to alienate the same. The case house is a valuable property at Rourkela. Thus, the Opposite Party No.5 or any other legal heirs of late Basanata Kumar Das, should not be deprived of exercising their right over the case house. As such, the RDA has committed no error in issuing letter under Annexure-4 by rejecting the application of the Petitioner for third party transfer of the case house. 7. Since the issue involved in this writ petition relates to absolute ownership claimed by the Petitioner, the Civil Court is competent to adjudicate the same. Hence, the writ petition as laid down is not maintainable and is liable to be dismissed. 8. It is further submitted that the Opposite Party No.5 was looking after his mother (Petitioner) and his younger brother since 1994 till January, 2023. It is his elder brother, namely, Sri Arun Kumar Das, gaining over their mother, namely, the Page 5 of 10 // 6 // Petitioner, hatched conspiracy to garb the money by alienating the case house. His mother is 90 years old and she could not understand the conspiracy of his elder brother, who is trying to take away the entire consideration amount by alienating the case house. 9. Father of Opposite Party No.5, namely, late Basanta Kumar Das, was an officer of Rourkela Steel Plant and he had acquired several properties at Rourkela and Cuttack. The entire family was living in joint mess during the life time of their father. After death of late Basanta Kumar Das, the property acquired by him was amicably partitioned. As per the family settlement, his elder brother, namely, Sri Arun Kumar Das, got the share of the landed properties, such as, MICR-23 at Chhend Colony, Rourkela and Flat No.3 at Prasanati Apartment, Deualasahi, Cuttack. On the other hand, the Opposite Party no.5 got the landed property, such as, C/577 at Koel Nagar, Rourkela and BL-199 (LIG) at Basanati Colony, Rourkela. As per the family settlement, the case house was transferred in the name of their mother, namely, the Petitioner, with an oral condition that the said house will be let out on rent. Out of the said income, both the brothers, namely, Arun Kumar Das and Opposite Party No.5 would maintain their mother and their mentally disabled younger brother. 10. In view of such settlement, all the family members gave consent before the RDA to execute the lease-cum-sale deed in respect of the case house in the name of their mother. Since all the family members were residing jointly in the case house, the Opposite Party No.5 has an emotional attachment to the said Page 6 of 10 // 7 // house. Getting the notice expressing intention of the Petitioner to alienate the property, the Opposite Party No.5 was hurt. Hence, he filed objection before RDA requesting it to reject the application. As the case house is a joint family property, the Petitioner does not have any absolute alienable right. Hence, the RDA has rightly rejected the application and advised the parties to approach the Civil Court for getting the dispute adjudicated. Hence, he prays for dismissal of the writ petition. 11. Heard learned counsel for the parties at length. Perused the case record including the counter affidavit filed by respective parties. 12. Admittedly, late Basasnta Kumar Das, predecessor of the Petitioner and Opposite Party No.5, had purchased the case house from his own income. It was a self-acquired property of late Basanta Kumar Das. After his death, succession opened and property devolved upon the Petitioner as well as five children of said Basanta Kumar Das including the Opposite Party No.5. When the matter stood thus, an application was filed to execute a fresh lease-cum-sale deed in favour of the Petitioner. All the children of late Basanta Kumar Das gave their consent and NOC for the same. Accordingly, the case house was initially allotted in the name of the Petitioner and subsequently, lease deed was executed in her favour on 1st day of August, 2015. As per the terms and conditions of the lease deed under Annexure-2, the Petitioner is the sole lessee in respect of the case house. There appears a clause in the said lease deed that in case the lessee, namely, the Petitioner, intends to alienate the property in any manner, it has to take prior permission of the RDA. Page 7 of 10 // 8 // 13. Once the lease-cum-sale deed under Annexure-2 was executed in favour of the Petitioner, she became the absolute owner and lessee in respect of the case house in exclusion of others. Thus, none of the legal heirs of late Basanta Kumar Das except the Petitioner has any right over the leasehold property, i.e. the case house. 14. When the matter stood thus, the Petitioner in order to meet her legal necessity made an application for third party transfer of the case house. Following the convention, objection on such application was called for. The Opposite Party No.5 submitted an objection detailing the argument advanced by Mr. Pattnaik, learned counsel for Opposite Party No.5. The contention of Opposite Party No.5 to the effect that in view of the family settlement, the case house was to be let out to the outsiders and the Petitioner would be maintained from out of the said income, has no basis as there is no material on record except bald statement made in the counter affidavit together with the submission of Mr. Pattnaik, learned counsel for Opposite Party No.5. Once lease-cum-sale deed is executed by RDA in favour of the Petitioner, she becomes the sole lessee in respect of the case house having exclusive right, title and interest in it to the exclusion of others. Thus, she has the absolute alienable right over the case house subject to the terms and conditions of the lease-cum-sale deed under Annexure-2. Neither learned counsel for RDA-Opposite Party Nos.3 and 4 nor learned counsel for Opposite Party No.5 could rebut the aforesaid legal position. There is nothing on record more particularly in the lease-cum- sale deed which would confer any right on the Opposite Party Page 8 of 10 // 9 // No.5 in respect of the case house after fresh lease-cum-sale deed under Annexure-2 was executed in favour of the Petitioner. Fact remains that children of late Basanta Kumar Das have given their consent/NOC to execute the lease deed in favour of the Petitioner and accordingly, Annexure-2 has been executed and registered. The said lease deed has not been challenged in any forum till date. Thus, it can be safely said that the Petitioner being the sole lessee in respect of the case house has absolute alienable right over the same subject to the permission to be accorded by the lesser, namely, RDA. 15. Application for third party transfer of the case house was rejected by the RDA only on the ground that after death of the original allottee, all the legal heirs have equal right, title and interest over the suit property. Apart from that, one of the legal heirs, namely, Paresh Kumar Das (Opposite Party No.5) was filing repeated objections stating that his mother has no right, title and interest to transfer the case house. Such an observation has no legal basis at all in view of the fact that lease-cum-sale deed under Annexure-2 in respect of the case house has been executed in favour of the Petitioner only. Thus, the Opposite Party No.5 cannot have any objection with regard to right, title and interest of the Petitioner in respect of the case house. No relinquishment deed/NOC from the legal heirs of late Basanta Kumar Das is necessary for according permission to the Petitioner for third party transfer of the case house as none of the legal heirs except the Petitioner has any right, title or interest over the case house after the lease-cum-sale deed under Annexure-2 was executed. Page 9 of 10 // 10 // 16. In that view of the matter, this Court is of the considered opinion that letter under Annexure-4 is not sustainable and is accordingly set aside. 17. The writ petition is allowed to the aforesaid extent with a direction that the Rourkela Development Authority shall consider the application submitted by the Petitioner for third party transfer of the case house without insisting upon relinquishment deed/NOC from the legal heirs of late Basanta Kumar Das, as they have no right, title and interest over the case house. 18. In the facts and circumstances of the case, there shall be no order as to costs. (K.R. Mohapatra) Judge Orissa High Court, Cutack Dated the 5th April, 2024/bks Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Apr-2024 18:29:34 Page 10 of 10