The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.7860 of 2023 In the matter of an application under Article 226 of the Constitution of India. ----------- Bijoy Anand Mahanti … Petitioner(s) -Versus- State of Odisha & Ors. …. Opposite Parties For Petitioner … Petitioner in person
Legal Reasoning
For Opposite Parties … Mr.U.K.Sahoo, Addl. Standing Counsel. (For O.P.No.1) Mr.D.Mohapatra, Mr.S.D.Mohapatra, Mr.M.R.Pradhan, Mr.J.Barik & Mr.P.K.Singhdeo,Adv. (For O.P.No.2) PRESENT: J U D G M E N T THE HONOURABLE JUSTICE BISWANATH RATH Date of Hearing and Judgment: 13.07.2023 Biswanath Rath, J. This writ petition involves the following prayer: <In the premises afore stated the Petitioner most humbly the Plot of Land prays: i That this Hon’ble Court may be graciously pleased to issue notice to the Opp. Parties, upon return thereto, admit, hear and allow this Writ Petition by issuance of appropriate Writs /Directions, inter alia directions to the State Govt. to grant the Petitioner lease in respect of (Plot No.307-B, District Centre, to be Chandrasekharpur, Bhubaneswar-751016) within a stipulated by this Hon’ble Court, bearing in mind that the Petitioner is already in the winter of his life at the age of 78 years. This will enable the Petitioner to wind up his affairs and prepare himself for his last journey in life. Such other and further order(s) and or Writs/directions as this Hon’ble Court may deem fit and proper and/or, to which the Petitioners may in law be entitled to, be also issued/passed. time Page 1 of 4 // 2 // And for this Act of kindness, the Petitioners shall, as in duty bound, ever pray.= Background involving the case is petitioner for his personal 2. reason desired to spend rest part of his life and to practice in the State of Odisha, searched for a land in and around Bhubaneswar. In the process got an offer from Dr.Jagannath Mohapatra (opposite party no.3) showing his interest to sale plot bearing No.307-B in District Centre , Chandrasekharpur being allotted to him by Bhubaneswar Development Authority, the opposite party no.2. On finalization of negotiation, petitioner established contact with opposite party no.2 for verification of title. Being satisfied on the title over such land with opposite party no.3 applied for transfer of the land to his name and vide communication dated 07.02.2008 the opposite party no.2 transferred the land in favour of the petitioner. Communication stated above appearing at Annexure-3. Soon thereafter, petitioner applied for building plan and plan being duly approved, petitioner constructed the building spending huge amount and residing there peacefully and uninterruptedly. There also undisputedly involve a <No Objection Certificate= issued by the Bhubaneswar Development Authority to facilitate the petitioner to take bank finance in the year 2010. Crux of the matter is for there is necessity of a lease agreement between the Bhubaneswar Development Authority and petitioner, petitioner made an online application involving very same land on 22.02.2022 vide UAN 22000137. On completion of verification, petitioner even deposited huge sum of Rs.60,2000/- on 12.04.2022 towards processing fee vide Annexure-6, petitioner’s approach for entering into lease agreement being not given a timely attending was constrained to bring this litigation for issuing a writ of mandamus Page 2 of 4 // 3 // against opposite party no.2 in entering into the required lease agreement. 3. Mr. Dayananda Mohapatra, learned counsel appearing for the Development Authority while taking this Court to the counter plea of the Development Authority to the restriction here vide Annexure-B/2 through a Gazette notification contended that for the notification authorizing lease agreement only with legal heirs of original allottee submitted that the Development Authority is constrained in acceding to the request of the Petitioner and request this Court for deciding the case accordingly. There is, however, no dispute on the application of citations at the instance of the Petitioner touching the core issue and the undisputed facts from according permission to transfer in favour of petitioner till grant of <No Objection Certificate= for bank loan even including approval plan for construction of building on the land involved. 4. Considering the rival contentions and with the undisputed developments narrated hereinabove in paragraph-3 hereinabove, this Court finds, a lot of water has already flown in the joint action of both the Petitioner and the Development authority. Looking to the restriction in gazette notification this Court has no hesitation in observing that the restriction and or authorization, there has not been in a proper test. For the original allottee still surviving, State cannot compel a transferee enjoying the transferred property on active participation of Bhubaneswar Development Authority to wait for mere preparation of the lease agreement between the party in actual ownership and the Development Authority till Petitioner gets the scope with the legal heirs of the 1st owner. Proposition noted in the Gazette notification remain irrational and illogical and cannot have any role and or obstruction on the request Page 3 of 4 // 4 // of the Petitioner presently. Yes, it shall have application in worse case where the original allottee is dead but cannot restrict registration in the survival of original allottee. 5. Considering the obstruction in the hand of the Development Authority in view of the restriction in the Orissa Gazette Notification dated 30th December, 2022 at Annexure-B/2 at page- 9, running page 135 of the brief, this Court finds the relaxation therein reads as follows: <Government after careful consideration, have been pleased to decide for exclusion of the names of the allottees, getting only one plot/house/flat through fair means and by following the prescribed procedure and provisions and for transfer of such allotments in favour of the legal heirs of the original allottee from the purview of the Task Force Report.= This Court here looking to the factual scenario involved herein finds the petitioner case stands in a better footing as there is direct cause for lease document in between the petitioner and the Bhubaneswar Development Authority in the survival of original allottee. 6. In the circumstance and for the outcome already in W.P.(C).No.12489 of 2022 disposed of on 12.10.2022 and W.P.(C).No.18169 of 2023 disposed of on 07.07.2023, this Court allowing the writ petition commands the Development Authority to execute the appropriate lease deed by completing the entire exercise at least within a period of three weeks hence. 7.
Decision
In the result, the writ petition succeeds. No cost. ….…………………… Biswanath Rath, J. Orissa High Court, Cuttack. Dated 13th day of July, 2023/SKS Signature Not Verified Digitally Signed Signed by: SUSIL KUMAR SWAIN Reason: Authentication Location: High Court of Orisa Date: 21-Jul-2023 13:04:54 Page 4 of 4