The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.873 of 2024 Paresh Kumar Das …. Appellant Mr. A. R. Dash, Advocate Mr. Subhendu Kar, Advocate -versus- Annapurna Das and others Respondents Mr. S. K. Mishra, Senior Advocate assisted by Ms. P. S. Mohanty, Advocate for Respondent No.1 Mr. R.N. Mishra, AGA for State Mr. D. K. Mohapatra, Advocate for Respondent No.5 (RDA) …. CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO Order No. 06. ORDER 25.07.2024 This matter is taken up through Hybrid mode. 2. In the present intra-court appeal, a judgment dated 05.04.2024 passed by a learned Single Judge of this Court in W.P.(C) No.1607 of 2024 is under challenge. 3. 4.
Legal Reasoning
We have heard learned counsel for the parties. Before addressing the issues involved, it would be beneficial to notice at the outset the relevant facts for clear understanding of the legal and factual issues involved in the present matter. 5. Respondent No.1 is the widow of late Basanta Kumar Das. The appellant is one of the sons of late Basanta Kumar Das. The dispute relates to House No. M/11, Durgapur Foot Hill Housing Page 1 of 6 Project, Stage-II, Basanti Colony, Rourkela which was allotted to said Basanta Kumar Das by the Rourkela Development Authority (RDA) and a lease-cum-sale deed was executed in his favour. The said Basanta Kumar Das died leaving behind his widow (respondent No.1), three sons and a daughter including the present appellant. A no objection certificate (NOC) was submitted in shape of an affidavit before the RDA to mutate the disputed house in the name of respondent No.1. A fresh allotment order was accordingly issued in her favour and a lease-cum-sale deed was accordingly executed by the RDA in her favour. Later, respondent No.1 made an application before the RDA for third party transfer of the said house. Objections were invited by the RDA on the said application from the co-sharers. Except the appellant, no other person in the family raised any objection. The appellant in his objection before RDA took a plea that consequent upon the death of Basanta Kumar Das, all his heirs including respondent No.1 acquired equal share in the case house. It was out of love and affection for their mother that the sons and daughter of Basanta Kumar Das and respondent No.1 had executed an NOC in favour of respondent No.1. Accordingly, he asserted before the RDA that respondent No.1 did not have any absolute alienable right over the case house. 6. After considering the objection raised by the appellant, the RDA decided to reject the application of respondent No.1 on the reasoning that the transfer of the disputed house could not be permitted to respondent No.1 alone, without obtaining relinquishment deed/NOC from other co-sharers, which was communicated to respondent No.1 through letter No.1529 dated Page 2 of 6 30.12.2023 under the signature of the Secretary, RDA which was subject matter of challenge in W.P.(C) No.1607 of 2024. In the said writ petition, only the appellant was impleaded as party. No other co-sharers were impleaded as parties. 7. Before the learned Single Judge, it was the case of respondent No.1 that pursuant to execution of lease-cum-sale deed in her favour by RDA, she became the absolute owner of the disputed property since in terms of the conditions of lease-cum-sale deed, she was the sole lessee and had thus exclusive alienable right over the disputed property with the prior permission of the RDA. She asserted that neither the appellant nor other legal heirs of late Basanta Kumar Das had any right, title, interest or possession over the suit property. A plea was also taken in the writ proceeding that respondent No.1 had a self-acquired property in her name at Basanti Colony, Rourkela allotted by the Orissa State Housing Board (OSHB) which she had gifted to the appellant out of love and affection taking permission of the OSHB by executing registered gift deed on 20.12.2019. The appellant had a greedy eye on the house in question and was thus creating hurdles for her in making third party transfer. 8. Learned Single Judge, after having noticed the pleadings on record and submissions advanced on behalf of the parties, has concluded in the impugned judgment that since the lease-cum-sale
Decision
deed under Annexure-2 to the writ petition in respect of the house in question had been executed in favour of respondent No.1 only, she being the sole lessee had the absolute alienable right over the same subject to the permission to be accorded by the RDA. Learned Page 3 of 6 Single Judge has rejected the case of the appellant and has held that no relinquishment deed/NOC from the legal heirs of late Basanta Kumar Das was required for permission to respondent No.1 for the third-party transfer of the disputed house. After having held so, the learned Single Judge allowed the writ application with a direction to the RDA to consider the application submitted by respondent No.1 for third party transfer of the case house without insisting upon the relinquishment deed/NOC from the legal heirs of late Basanta Kumar Das, as they had no right, title and interest over the disputed property. 9. Assailing the impugned judgment passed by the learned Single Judge, Mr. A.R. Dash, learned counsel appearing on behalf of the appellant has submitted that the writ petition itself was not maintainable as the dispute related to declaration of title over the disputed house which could have been decided by a competent court of civil jurisdiction. He has argued that the disputed property cannot be termed as self-acquired property of respondent No.1 merely because a fresh lease deed was executed in her favour by the RDA after death of Basanta Kumar Das based on NOC furnished by the other legal heirs of late Basanta Kumar Das. The full consideration amount for acquisition of the disputed house was paid by Basanta Kumar Das and therefore, in the absence of a registered deed of relinquishment, the NOC in shape of an affidavit cannot take away the rights of the other co-sharers. It has accordingly been submitted that the observation made by the learned Single Judge that there was no requirement of any relinquishment deed/NOC from the legal heirs of Basanta Kumar Page 4 of 6 Das for according permission to respondent No.1 for third party transfer, was not sustainable in the eye of law. He has relied on the Supreme Court’s decision in case of Suresh Kumar Kohli v. Rakesh Jain, (2018) 6 SCC 708 and H.C. Pandey v. G.C. Paul, (1989) 3 SCC 77. 10. Mr. S.K. Mishra, learned Senior Counsel appearing on behalf of respondent No.1 has submitted per contra that the RDA had executed the lease deed exclusively in the name of respondent No.1 consequent upon the death of Basanta Kumar Das based on NOC given by all other legal heirs of Basanta Kumar Das including the appellant. He has argued that the late husband of the respondent No1 was mere allottee of the plot and was not a lessee. He submits that respondent No.1 thus became the sole lessee and the owner of the property and in such view of the matter, she has an absolute right to deal with the disputed property including transfer of it to a third party by execution of deed subject to permission of the RDA. The decision of the RDA to decline respondent No.1 the permission to transfer the disputed property was therefore per se illegal which has been rightly interfered with by the learned Single Judge. He has submitted that the position of law would have been different had the dispute been raised by appellant before the execution of lease deed. He has placed reliance on a decision of Karnataka High Court rendered on 07.05.2024 in Regular First Appeal No.764 of 2010 and a Delhi High Court decision in Moneyline Credit Ltd. v. Sanjeev Kumar, 2014 SCC OnLine Del 4916. 11. It is worthwhile noticing, as is evident from the impugned judgment passed by the learned Single Judge that a specific plea Page 5 of 6 was taken on behalf of the appellant in the writ proceeding that the disputed question of title of the legal heirs of late Basanta Kumar Das could be decided by a competent court of civil jurisdiction only. 12. We find force in the submission made on behalf of the appellant that a question of respective title of the legal heirs of Basanta Kumar Das could not have been gone into by learned Single Judge in the writ proceeding more so in the absence of legal heirs other than the appellant and respondent No.1 as party to the writ proceeding. 13. Considering the nature of the dispute, in the Court’s opinion, the same can be adjudicated upon by a competent court of civil jurisdiction. In the present appeal, we have refrained from addressing the issues of succession/inheritance so that no case of parties stands prejudice, if any suit is filed. 14. Accordingly, this appeal is allowed. The impugned judgment passed by the learned Single Judge dated 05.04.2024 in W.P.(C) No.1607 of 2024 is set aside. The parties shall be at liberty to approach the competent court of civil jurisdiction for adjudication of the dispute in accordance with law. Chief Justice (Chakradhari Sharan Singh) (Savitri Ratho) Judge S.K. Guin/PA Signature Not Verified Digitally Signed Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Aug-2024 18:33:53 Page 6 of 6