The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Apr-2024 17:26:17 IN THE HIGH COURT OF ORISSA AT CUTTACK CONTC NO.802 OF 2022 Dharanidhar Rout …. Mr. Nirmal Chandra Das, Advocate -versus- Petitioner Sagarika Pattnaik, IRPS, Secretary- cum-Housing Commissioner …. Opp. Party
Legal Reasoning
Mr. Dayananda Mohapatra, Advocate (For OSHB) Order No. 02. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 23.04.2024 This matter is taken up through hybrid mode. The Petitioner has filed this CONTC application alleging non-compliance of order dated 15th November, 2021, whereby W.P.(C). No.34828 of 2021 was disposed of with the following direction: “4. Prayer in the writ petition is allowed. Opposite Party No.2 will cause the registration and Opposite Party No.5 will act accordingly, within a period of three weeks from date of communication of this order.” Mr. Das, learned counsel for the Petitioner submits that the 3. Advertisement under Annexure-2 to the writ petition specifically indicates that the Allottees should contact the Odisha State Housing Board (For brevity ‘OSHB’) for execution of lease-cum-sale deed. Accordingly, the Petitioner approached the OSHB for execution of the lease-cum-sale deed. Since the lease-cum-sale deed was not executed, the Petitioner filed the writ petition with a prayer to direct the Opposite Parties to execute the lease-cum-sale deed taking into consideration the valuation reflected in the allotment order for calculation of the stamp duty. It is his submission that the case of the Petitioner is squarely covered by the decision in the case of Prafulla Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Apr-2024 17:26:17 Kumar Rai vrs. Odisha State Housing Board and others (W.P.(C). No.26622 of 2021 disposed of on 7th September, 2021). While disposing of the writ petition, this Court also accepted the same and passed the aforesaid direction. Since the OSHB is not executing the lease-cum-sale deed and insisting the Petitioner to execute the lease deed for registration, the CONTC has been filed. 4. It is also submitted that 242 numbers of lease-cum-sale deeds have already been executed in favour of different Allottees. Thus, there is no difficulty on the part of the OSHB to execute the lease-cum-sale deed. It is also submitted that if the OSHB was aggrieved by the order dated 15th November, 2021, passed in W.P.(C). No.34828 of 2021, they could have challenged the same. Without assailing the said order, the OSHB cannot deny the execution of the lease-cum-sale deed in favour of the Petitioner. He, therefore, prays for initiating a contempt proceeding against the Secretary, OSHB and to punish him suitably. 5. Mr. Mohapatra, learned counsel for OSHB referring to the show-cause reply submits that the OSHB has been leased out with the property by the Government on certain terms and conditions. Thus, it cannot convey any better title to the Petitioner. Since the OSHB is a lessee under the State Government, it can only sub-lease any portion of the property in favour of the Allottees in terms of the lease deed executed in its favour. The OSHB has no authority to sale any portion of the property. Although in the Advertisement, the word has been loosely used as ‘lease-cum-sale deed’, but in all effect, the same would be a lease deed only. Although, the Petitioner has been offered to cooperate for registration of the lease deed, but he did not. Instead, the CONTC has been filed. Thus, CONTC may be dropped. Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Apr-2024 17:26:17 6. Mr. Mohapatra, learned counsel for OSHB further submits that in the case of Prafulla Kumar Rai (supra), it is held that the stamp duty leviable on the deed of conveyance would be on the value as stated in the deed itself. There is no dispute to the ratio decided therein. Only because a direction was made therein to execute the lease-cum-sale deed basing upon the facts and circumstances of the said case, the Petitioner should not insist upon the OSHB to execute the lease-cum-sale deed. It is further submitted that inadvertently, certain lease-cum-sale deeds have been executed earlier, but in effect, those deeds are lease deeds only. The OSHB is ready to register the lease deed if the petitioner co-operates. He, therefore, submits that the Opposite Party should be exonerated and the contempt proceeding be dropped. 7. Taking into consideration the submission made by learned counsel for the parties and on perusal of the record, it appears that the OSHB is a lessee under the State Government. Upon taking lease of the land from the State Government, the OSHB is leasing out the properties in favour of the Allottees. The OSHB cannot convey a better title than it has on the immovable property. Since the OSHB is a lessee, it cannot sale the land in favour of the Allottees. Thus, requesting the Petitioner to cooperate for registration of the lease deed in his favour cannot be taken as an exception. From the submission of learned counsel for the parties, it appears that earlier several lease-cum-sale deeds have been executed in favour of the Allottees by the OSHB, but that will never confer a better title than the leaser itself had over the land in question. Realizing the mistake committed by the OSHB earlier, an Office Order No.6872/OSHB dated 22nd September, 2021 was issued wherein it is clarified as under: Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Apr-2024 17:26:17 “Keeping in view the clarification on chargeability of stamp duty and registration fees on the instrument of lease at the time of registration issued by the Govt. in R & D.M Deptt. Odisha, to the Inspector General Registration, Odisha, Cuttack under intimation to all the Registering Authority in their letter No. Regn-6/2016-20508 dt. 04.07.2016, the Chairman, OSHB has been pleased to execute the "lease deed" in approved format with the allottees under different Housing Schemes henceforth instead of "lease-cum-sale deed" in the greater interest of the allottees. This order will come into force with immediate effect.” 8. It further appears that this Court while disposing of W.P.(C). No.34828 of 2021 has never directed the OSHB to execute and register lease-cum-sale deed in favour of the Petitioner. 9. This Court is of the considered opinion that offering the Petitioner to register the leased deed is a bona fide act of the OSHB. Thus, no willful disobedience of the order of this Court is made by the Opposite Party. As such no contempt is made out. 10. Accordingly, the CONTC is dropped. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4