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AFR IN THE HIGH COURT OF ORISSA AT CUTTACK. W.P.(C) No.10788 of 2014 An application under Articles 226 and 227 of the Constitution of India. Smt. Sandhya Mishra …… Petitioner -Versus- The State of Odisha and Others …… Opposite Parties ---------------------------------------------------------------------------------------- For Petitioner : Mr. D.C. Mohanty, Senior Advocate with Mr. G.P. Mohanty, Advocate For Opposite Parties: Mr. P.K. Muduli, Addl. Government Advocate ---------------------------------------------------------------------------------------- CORAM : HONOURABLE MR. JUSTICE S.TALAPATRA HONOURABLE MR. JUSTICE M.S. SAHOO JUDGMENT 16th March, 2023 S.Talapatra, J. In brief, the Petitioner’s grievance emanates from the Notice No.11370 dated 16.04.2014, Annexure-1 to the writ petition filed by the Petitioner. By the said notice, the Petitioner had been asked to deposit Infrastructure Development Cost (ID Cost in short) to the extent of Rs.13,77,410/- at the revised rate, with fine for delay, if deposited 2 within 60 days from the date of intimation. A plot of land pertaining to Plot No.188, DRG No.B361 measuring 40 x 60 in Kalinganagar (K-2) was allotted on payment of the premium of Rs.11,020/- and Infrastructure Development Cost of Rs.24,794/-, payable in three equal instalments at the rate of Rs.8,265/- each. There is no dispute that the Petitioner had paid Rs.5000/- as advance and later on, paid Rs.6,020/- towards the balance amount as the cost of land. At that point of time, the valuation of land was fixed at Rs.2 lakhs per acre and Infrastructure Development Cost was fixed at Rs.4.5 lakhs per acre. Total amount of the land as determined to be payable was Rs.35,814/-. There is no dispute that the deed of lease was duly executed in favour of the Petitioner on payment of the premium, as determined by the Government. Clause-2 of the said lease dated 28.08.1992, Annexure-3 to this writ petition, provides that, the lessee shall pay the cost of Infrastructure Development at Rs.24,794/- (Twenty four thousand seven hundred ninety four) in three equal and annual consecutive instalments at the rate of Rs.8,265/- each in the manner as prescribed in Para-1(3) of the allotment order. The instalments should be paid on or before the date
Legal Reasoning
of the first, the second and the third anniversary of the execution of the 3 lease. For purpose of reference it would be apposite to refer to the Para-
Decision
1(3) of the allotment order, Annexure-2 to the writ petition, which reads as follows: “1.(3) The cost of infrastructure development amounting to Rs.24,794/- (Rupees Twenty four thousand seven hundred ninety four) only shall be deposited in three consecutive annual and equal instalments @ Rs.8,265/- each. First instalment shall be payable before completion of one year from the date of execution of lease deed. Second instalment shall be payable before completion of two years from the date of execution of lease deed. Third instalment shall be payable before competition of three years from the date of execution of lease deed. These instalments shall be deposited either in shape of Account Payee Bank Draft to be drawn in favour of the Director of Estates and ex-officio Joint Secretary to Government in General Administration Department payable at Bhubaneswar or by Treasury Challan under the Head of Account “8443-Civil Deposits- 117-Deposits for work done for public bodies or private individuals- Deposits by private individuals for development of infrastructure of land giving on lease in Bhubaneswar and the Bank Draft or Treasury Challan in original should be submitted to this Department within 15 days from such deposit. Provided that, if he/she fails to deposit the said instalments within the period stipulated in clause 1(3) above he/she may deposit the same within a further period of 30 (thirty) days on payment of fine @ Rs.50/- per each day of delay. The said fine shall be deposited either in separate Treasury Challan under the Head of Account “0070-Other Adminstrative Service-60-Other Services-800-Other receipt fines for delay in deposit of premium of allotted land” or in shape of Account Payee Bank Draft in the manner prescribed in paragraph 1(2) and submit the said Treasury the Bank Challan/Bank Draft Draft/Treasury Challan towards deposit of instalment to this Department within 30 (thirty) days from the due date of instalment. Failure in deposit of instalment in due date as in original alongwith 4 provided in clause 1(3) and proviso to clause 1(3) shall be liable for determination of the lease and forfeiture of premium and other instalments, if any, deposited.” Thus, it is apparent that, it has been provided unambiguously that, failure in making the payment of instalments within the due date as provided in clause 1(3) and proviso to clause 1 (3), the lease shall be liable for determination and premium and other instalments, if any, deposited shall be forfeited. The Petitioner, who was allotted a Plot, as stated earlier, had admittedly failed to deposit the instalments. Admittedly, she did not enter into the possession of the said plot, even though the lease deed was executed on 28th August, 1992. 2. From the communication dated 18.11.2005, Annexure-5 to the writ petition, it would be apparent that the Petitioner had written to the Special Secretary, General Administration Department, Government of Odisha that, she has the original registered Lease Deed dated 28.08.1992 in her possession. But, she had not been favoured with any communication for taking possession of the leased out land, as described fully in the said lease deed. But in the said communication, surprisingly the Petitioner did not make any mention in respect of her obligation to pay the Infrastructure Development Cost. However, she had mentioned 5 that around July, 1992, she had left Bhubaneswar and shifted to Calcutta and thereafter, to Mumbai, and she has been residing there. She had provided her Mumbai address in the said communication. Again, in 2012, almost after 12 years, she wrote a similar letter (Annexure-5/1 to the writ petition). In that letter, she had mentioned about her obligation. She had written to the Special Secretary, General Administration Department Government of Odisha, Bhubaneswar as follows: “……..As considerable time has elapsed the penal amount due would be substantial. I would request you to please waive the monetary penalty. However, to compensate the delay in payment of balance amount interest as chargeable under the rules may be charged.” She had revealed in the said communication that, due to continuous illness of her husband, who was hospitalized in Mumbai in the year 2001 for a prolonged period and again in 2006 and 2009, she had not been able to go to Bhubaneswar to pursue the matter. Similar communication was made to the Chief Minister of Odisha, Bhubaneswar on 24.07.2012, Annexure-5/2 to the writ petition by placing the facts in details. In Para- 20 of the said communication addressed to the Chief Minister of Odisha it had been stated by the Petitioner as follows: “20. Now, I understand, for non payment of Rs.24,794/- I may have to pay a penalty of several lakhs. 6 Most respectfully I submit that I had a genuine belief that on receipt of the registered deed the balance amount had to be paid. However erroneous my belief may be, the circumstances narrated above I was in no position to consult anyone or to pursue the matter in time. I may state here that neither my husband, nor I have any land or property in Bhubaneswar.” it was genuine, and, because of Finally, she had asked to waive or reduce the penal rate of interest for non-payment of delayed payment and pass the order for ends of justice. The Petitioner had repeated the same plea in the said communication dated 20.02.2013, addressed to the Chief Minister, Odisha, Annexure- 5/3 to the writ petition. By another communication dated 06.06.2013 addressed to the Secretary, General Administration Department, Odisha, Annexure-6 to the writ petition, she had nudged to take an early decision. The similar communications dated 04.05.2014, Annexures 7 and 8 for waiver were made to the Addl. Land Officer, General Administration Department, Bhubaneswar and the Special Secretary, General Administration Department, Odisha respectively. By the covering letter Annexure-9 to the writ petition, the Petitioner had produced some medical records of her husband’s illness showing that her husband was suffering from various ailments, including imputation of AICD (Defibrillator and Pacemaker). 7 3. In these perspective facts, the Petitioner has asked this Court to quash the order dated 16.04.2014 passed by the Additional Land Officer, Government of Odisha in the General Administrative Department (under Annexure-1 to the writ petition) and to act upon the instruments/documents in respect of allotment of the land in favour of the Petitioner, as referred above and the lease deed (Annexures-2 and 3 to the writ petition respectively). 4. The Opposite Parties by filing the counter affidavit have admitted the facts and stated that since the Petitioner had failed to discharge her obligation of payment of the Infrastructure Development Cost to the extent of Rs.24,794/- by three instalments from the date of lease, she cannot claim any relief against the Opposite Parties. The last date of paying the final or third instalments was on 16.07.1997. As per Clause-4(1) of the lease deed in case of breach of any covenant by the lessee, the lessor may re-enter on the demised premises and determine the lease. In this case, as stated, the possession was not handed over. More specifically, in the proviso to Clause-1(3) of the original allotment order, it has been clearly provided that on failure to deposit the instalments of Infrastructure Development Costs within the stipulated 8 period of three consecutive years, the lease will be liable for determination and the premium shall also be liable for forfeiture. It reveals from the Government records, that the Petitioner, after payment of the required premium, got the lease deed executed but she did not deposit the Infrastructure Development Cost within the stipulated period and after a long lapse of 12 years, she submitted an application on 18.11.2005 communicating that, she had shifted to Calcutta and thereafter to Mumbai having known full well that in terms of the lease conditions as well as the conditions of the allotment order, the Petitioner did not discharge her obligation by making due deposit and thus, the clause relating to breach had come to be acted upon. The Opposite Parties had taken note of the illness of the Petitioner and her husband. They had stated as well that the Petitioner had filed an objection stating that the rate of Infrastructure Development Cost has been revised from Rs.4.5 lakhs to Rs.2.5 crore per acre unilaterally and as such, such action in the domain of contract is unfair, unjust, arbitrary, unreasonable and seriously prejudicial to the interest of the Petitioner. Thereafter, the Opposite Parties have responded in the following manner: 9 the “It is not at all a fact that such a decision has been taken behind the back of Petitioner. In fact, after issue ultimately prolonged deliberation over resulting in Cabinet approval and concurrence of Finance & Law Deptt. in the matter, Govt. have adopted this policy decision to deal with the defaulting cases under the Kalinga Nagar Plotted Scheme floated in the year 1989. As such, it can never be assailed to be abinitio void and a nullity as has been alleged by the Petitioner. The action of the State is quite fair, just and reasonable and not the contrary as has been wrongly alleged by the Petitioner. The revised I.D. cost has been charged upon the Petitioner strictly as per Clause-8 of the Policy decision circulated vide Order No.32669/CA, dtd.19.11.2013. Moreover, in a case of similar nature i.e. W.P.(C) No.13818 of 2005 filed by Smt. Kamini Patnaik*, this Hon’ble Court held that the Petitioner therein is required to pay the premium and I.D. cost along with fine @ Rs.50 per day for delayed payment of instalment towards I.D. cost.” 5. In the case of Kamini Patnaik, this Court, according to the Opposite Parties, had declined to interfere with the said Clause-8 of the Policy decision, circulated vide the Order No.32669/CA dated 19.11.2013, Annexure-D to the counter affidavit filed by the Opposite Party. In the said order, Annexure-D to the counter affidavit, it has been clearly laid down as follows: *Judgment dated 22.07.2010 10 “4. For cases, where full premium has been paid within 120 days from the date of issue of allotment order and the lease deed forms have not been supplied to the allottees by the Department, lease deed forms would be supplied immediately to the allottees as per Clause-5 of the allotment order with a direction to deposit the revised Infrastructure Development Cost (ID Cost) @ Rs.2.5 crore per acre and to execute the lease deed within 60 days from the date of issue of this lease deed form. If he/she fails to deposit and execute the lease deed within 60 days from the date of issue of lease deed form, he/she shall be allowed to deposit the ID Cost and to execute lease within further period of 30 days subject to payment of fine @Rs.50/- per day of delay failing which the allotment shall stand automatically cancelled and the amount of premium deposited shall be refunded to him/her.” [Emphasis added] 6. The Petitioner’s case falls within the said category, as referred in Para-4 of the said order dated 19.11.2013 [reproduced above]. Finally it has been provided in Para-8 of the said order dated 19.11.2013 as follows: “Where full premium have been paid, lease deeds have been executed and approved, lease deeds registered/not-registered, ID Cost not paid or partly paid, for such cases the defaulting allotees shall deposit the revised ID cost or remaining instalments of ID cost at revised rate, within 90 days (60 days without fine + 30 days with fine @ Rs.50 per day) from date of intimation. Lease shall be determined in case they fail to deposit the revised ID cost in the said manner followed by refund of premium and other instalments, if any, deposited.” [Emphasis added] 11 7. Mr. D.C. Mohanty, learned Senior Counsel appearing for the Petitioner has strenuously argued that, even after the representation dated 18.11.2005, the registered lease deed has not been sent to the Petitioner. The Petitioner was insisting to take a decision on his representation so that the matter can be regularized on waiving the burden of the penalty. Mr. Mohanty, learned Senior Counsel has further contended that, the payment of Infrastructure Development Cost was subject to acceptance of the proposal. In this regard, he has taken us to the first order of allotment subject to payment of premium. It has been stated in Para-1(3) that the Infrastructure Development Cost amounting to Rs.24,794/- has to be paid. But, when the order dated 19.11.2013, Annexure-D to the counter affidavit was issued unilaterally enhancing the said development cost from Rs.4.5 lakhs to Rs.2.5 crore per acre, no proposal in any form for acceptance of the said rate was made to the Petitioner. As such, the change is illegal and a colourable exercise of power. From the communication dated 12.03.2012, Mr. Mohanty, learned Senior Counsel has pointed out that the Petitioner had categorically urged for waiving the monetary penalty. Even in that 12 letter dated 12.03.2012, Annexure-5/1 to the writ petition, the Petitioner has categorically stated that, she had not been able to get her registered lease deed. In the year 2005, she had brought these facts before the authority for a favourable decision. To buttress his contention, Mr. Mohanty, learned Senior Counsel has relied on a decision of this Court in Bichitra N. Padhiary vs. State of Odisha and others [the order dated 07.09.2017 delivered in W.P.(C) No.4323 of 2013]. In the said order, the question that was considered by this Court is relating to conversion fees and the payment of revised conversion fee. As the Petitioner, Bichitra N. Padhiary had applied for the conversion much before the revision of the conversion rate, this Court was inclined to quash the order directing the Petitioner to pay the enhanced conversion fees. For purpose of reference, the relevant part is extracted hereunder: the application “It is trite in law that the petitioner is entitled to pay the conversion fee as prevalent on the date of making application. Since for conversion was made on 5.2.2008 to enhance the land premium much before the decision dated 7.9.2009 taken by the LAC to enhance conversion fee, the demand of further amount vide Annexure- 2 does not stand to the scrutiny of law. Similarly, as the encroachment has been removed on enquiry, as submitted by the learned Additional Government 13 Advocate, Annexure-1 is also illegal. So, Annexures- 1 and 2 are liable to be quashed and the Court do so. It is further directed that the petitioner would pay the conversion fees as prevalent on the date of making application for the same, i.e, 5.2.2008, and the opposite party no.2 is directed to receive the same and pass necessary order for conversion of the leasehold land to freehold. The entire exercise be completed within a period of eight weeks from the date of receipt of this order.” That apart, Mr. Mohanty, learned Senior Counsel has contended that the shift now is to a broader notion of fairness or fair procedure in the administrative action. So far the administrative officers are concerned, the duty is not so much to act judicially as to act fairly. For this concept of fairness, adjudicative settings are not necessary, nor is it necessary to have lis inter parties. There need not be any struggle between two Opposite Parties giving rise to a lis. There need not be resolution of lis inter parties. The duty to act judicially or to act fairly may arise in widely different circumstances. It may arise expressly or impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness in the administration. But when such an administrative decision affects one’s personal right or one’s property rights, or the 14 loss of, or prejudicially affects something which would juridically be called at least a privilege, does not involve the duty to act fairly consistent with the rules of natural justice. We cannot discover any other principle, contrary to this concept (Neelima Misra v. Harinder Kaur Paintal: AIR 1990 SC 1402). 8. Per contra Mr. P.K. Muduli, learned Additional Government Advocate has contended that the decision of this Court in Bichitrananda Das [W.P.(C) No.8159 of 2015 decided on 12.01.2018] has been reversed by the Apex Court in State of Odisha and Others vs. Bichitrananda Das: (2020) 12 SCC 649. The said Civil Appeal arose from the judgment and order dated 12.01.2018 delivered in W.P.(C) No.8159 of 2015. In the said judgment, the Apex Court has laid down the law in the following manner: for the rate to direct “17. ……….There was no justification for the High Court the that computation of conversion charges should be that which was applicable on the submission of an application on 15.09.2003. The application for freehold must leasehold conversion necessarily be consistent with and compliant to the governing provisions of the policy which has been framed by the State Government. Unless compliance is effected, there is no right to claim conversion of the land to freehold. Consequently, we are of the from to 15 view that the High Court was in error in directing the State to recompute the conversion charges as on 15.09.2003. The respondent would necessarily have to pay the conversion charges on the date when a final decision was taken after due verification that there was no encroachment and after scrutinising the declaration which was filed by the respondent.” 9. Mr. Muduli, learned Additional Government Advocate has further submitted that, the Petitioner did not have any right based on the lease, in as much as, she had failed to pay the Infrastructure Development Cost in terms of the Para-1(3) of the order of 1991, Annexure-2 to the writ petition. The last date of payment of the 3rd or final instalments had been notified in the form of Clause-4 of the lease deed. The last date had been stipulated and as such, according to Clause- 4(i) of the lease deed, the right of the Petitioner has extinguished since long. Clause-4 provides as follows: “4. PROVIDED ALWAYS AND IT IS HEREBY EXPRESSLY AGREED by and between the parties hereto as follows: (i) That whenever any part of the rent hereby reserved shall be in arrear for six months after the due date or if it is found that the statements made by the lessee in his/her said declaration dated 26.08.1992. In consideration of which the lease is granted to him/her are false or there shall be a breach of any of the convenants by the lessee herein contained the lessor may re-enter on the demised premises and determine this lease in which case the lessor may, by notice in writing required the ex-lessee to remove within a reasonable 16 time, any building which may have been commenced and not completed or the materials of which may have been collected on the leased land, and if he/she fails to comply with to such notice the lessor after giving a further notice in writing specifying a time not less than three months from the date of the service of the notice within which such building or materials shall be removed may cause such removal to be effected and recover the cost from him.” 10. Mr. Muduli, learned Additional Government Advocate has fairly admitted that, no consequential action in terms of the clause 4(i) has been taken against the Petitioner. Even, no notice in terms of Clause-5 of the lease, has been issued as yet. He has further contended that, in Rajiv Vohra vs. State of Haryana and Others: (2020) 13 SCC 452, the Apex Court has clearly observed that the rank defaulter is not entitled to any relief, when despite affording multiple opportunities the allottee continues to default. In this case also, the Petitioner was given notice to make the payment in terms of the revised Infrastructure Development Cost (See Anexure-1 to the writ petition). In Rajiv Vohra (supra) it has been observed thus: “8. After making a payment of 25% of the sale consideration, the appellant defaulted on the terms and conditions of the allotment. The third respondent issued notice to the appellant on 03.12.1996, 20.02.1998, 20.10.1999, 03.06.1999 and 18.09.2000. Despite service of the notices, the appellant failed to make any payment in accordance with the terms and conditions of the 17 allotment letter. In Smitra Jain v. HUDA: (2020) 13 SCC 465 a three-Judge Bench of this Court held that a rank defaulter is not entitled to any relief. Despite being afforded multiple opportunities to effect payment of the balance sale consideration, the appellant continued to default on the terms and conditions of the allotment.” [Emphasis added] 11. Having appreciated the rival contentions raised by the counsel appearing for the parties, this Court is of the view that by the allotment order of 1991, Annexure-2 to the writ petition, the Petitioner was notified reminding her obligation of payment in the revised rate. The Petitioner did make payment of the Infrastructure Development Cost of Rs.24,794/- in three equal instalments, each of Rs.8,265/-. It has been clearly stipulated that the first instalment shall be payable before completion of one year from the date of execution of the lease deed. The second instalment shall be payable before completion of two years from the date of execution of the lease deed and the third and final instalment shall be payable before competition of three years from the date of execution of the lease deed. The execution of the lease deed and the date of the lease deed are known to the Petitioner and a copy of the said lease deed was also retained by the Petitioner and a copy thereof has been enclosed 18 with the writ petition as Annexure-3. Therefore, the Petitioner cannot plead or cannot be allowed to hold that she had no knowledge, so far as the payment of the Infrastructure Development Cost is concerned. As such, the default is deliberate. There may be some constraints, but that will not obviate the obligation of payment, in terms of the deed of lease. Even, the causes so assigned for non- payment of the Infrastructure Development Cost for a long time cannot be sustained or approved. Therefore, this Court cannot grant any relief, as urged the Petitioner on waiving the obligation. It is apparent on the face of the records that the Government without taking over the leasehold land, as allotted to the Petitioner, provided a fresh scope, to make payment of Infrastructure Development Cost in the revised rate, which is much higher than the previous rate. But, the Petitioner has not taken any plea that there had been any escalation and the Government decision is squarely unfair, so far as the proportionate enhancement is concerned. The Government has provided an opportunity almost after 20 years of the original order of allotment made vide the order dated 19.11.2013. The Petitioner was communicated to pay the Infrastructure Development Cost in terms 19 of the said order dated 19.11.2013. But the Petitioner without paying the said Infrastructure Development Cost has approached this Court for passing the direction in the manner as referred above. Hence, this writ petition is liable to be dismissed and it is ordered accordingly. 12. The Petitioner may file an application to allow her pay the Infrastructure Development Cost in terms of the order dated 19.11.2013, Annexure-D to the writ petition within a time as would be stipulated by the appropriate authority in the Government. The Petitioner may approach the appropriate authority for waiver from the payment of fine and from making the deposit in terms of the said order dated 19.11.2013. As we do not find any failure in observing the fair procedure in the transaction, we are unable to provide any relief to the Petitioner. If the Petitioner makes any application for waiver of fine or from payment of the Infrastructure Development Cost in terms of the order dated 19.11.2013, the appropriate authority in the Government would consider the said prayer within the policy frame work and communicate the decision of the 20 Government within a reasonable time, preferably within two months from the date when such application will be made. 13. We are constrained to observe that the writ petition is bereft of merit and accordingly, the same stands dismissed, subject to the observation as made above in respect of waiver of fine. 14. There shall be no order as to cost. M.S. Sahoo, J. I agree. …………………………… ( S. Talapatra, J.) …………………………… (M.S. Sahoo, J.) Orissa High Court, Cuttack. The 16th day of March, 2023 L. Murmu, Senior Stenographer.