The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Jan-2024 18:33:25 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 17315 OF 2023 (An application under Articles 226 & 227 of the Constitution of India) ***** Budhadev Mishra …… Petitioner -Versus- State of Odisha and others .…… Opp. Parties Advocates appeared: For Petitioner : Mr. Partha Sarathi Nayak, Advocate For Opp. Parties : Mr. Amiya Kumar Mishra, Additional Government Advocate (For Opp. Party Nos.1 to 3) Mr. Dayananda Mohapatra, Advocate (For Opp. Party No.4) CORAM : MR. JUSTICE K.R. MOHAPATRA ------------------------------------------------ Heard and disposed of on 30.01.2024 ---------------------------------------------- JUDGMENT K.R. Mohapatra, J. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition seeks to assail Letter No.6430 dated 8th May, 2023 (Annexure-9 series) issued by the Secretary, Cuttack Development Authority (CDA), Cuttack- Opposite Party No.4 by which request of the Petitioner to issue application form for 3rd party transfer of Plot No.13-3E/1025 W.P.(C) No. 17315 OF 2023 Page 1 of 10
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Jan-2024 18:33:25 // 2 // (‘E’ category) at Sector-13 of Bidanasi Project Area, CDA, Cuttack (for brevity ‘the case land’), has been rejected. 3. The Petitioner also assails the legality of the resolution No.35008 dated 8th December, 2022 (Annexure-9 series) of General Administration & Public Grievance Department, Government of Odisha, operating in the field.
Legal Reasoning
4. Mr. Nayak, learned counsel for the Petitioner submits that provisional allotment of the case land was made in favour of the Petitioner by the Chairman, CDA under discretionary quota vide letter No.17331 dated 22nd July, 2008 (Annexure-1). Final allotment letter was issued on 25th October, 2008 (Annexure-1 series). The Petitioner took over the possession of the case land on 28th July, 2009 pursuant to the order No.15348 dated 21st July, 2009 (Annexure-2). Lease deed in respect of the case land was executed on 11th April, 2023. In the meantime, alleging irregularities and illegalities in allotment of land/house/flats by the Development Authorities, Odisha State Housing Board as well as GA Department, a task force was constituted by Government of Odisha to review the allotment under the discretionary quota. Accordingly, the Petitioner was served with a notice vide letter No.9027 dated 24th July, 2015 (Annexure-4) to show cause as to why allotment of the case land in his favour should not be cancelled in the light of the report of the task force and consequential resolution of the GA Department. The Petitioner submitted his reply on 4th August, 2015 (Annexure-5). When show cause reply filed by the Petitioner was under consideration, the Government resolution under Annexure-9 W.P.(C) No. 17315 OF 2023 Page 2 of 10 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Jan-2024 18:33:25 // 3 // series was issued excluding single allotment under discretionary quota through fair means by adopting the prescribed procedure and provision from the purview of the task force report. When the matter stood thus, the Petitioner requested the Secretary, CDA to supply an application form for 3rd party transfer of the case land vide his letter dated 7th October, 2022. The said request of the Petitioner was turned down vide letter dated 18th October, 2022 under Annexure-6 on the ground that the case land finds place in the task force report (under the discretionary quota) and lease deed in respect of the case land was not executed by then. Assailing the same, the Petitioner preferred W.P.(C) No.33320 of 2022. The said writ petition was disposed of by this Court on 19th December, 2022 with a direction to the CDA to take a decision on the request of the Petitioner in accordance with the order passed in W.P.(C) No.5274 of 2022 within one month from the date of communication of the said order. In W.P.(C) No.5274 of 2022, this Court vide order dated 19th July, 2022 held as under: for learned counsel “7. Considering the rival contentions of the parties and the particularly keeping in view the submissions made by Mr. Ghose, learned State Counsel and Mr. Mohapatra, the Cuttack Development Authority, through Annexure-10 & A/4 respectively, this Court reading both the resolution finds, the resolution at Annexure-10 as well as Annexure-A/4 bring modalities the recommendation of the Task Force in Annexure-10. In the first instance the State Government in General Administration Department came forward with the modalities for working-out the recommendation, however, the Clause 10 therein requires the General Administration Department the modalities for implementation of the Task Force after to work out to work-out W.P.(C) No. 17315 OF 2023 Page 3 of 10 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Jan-2024 18:33:25 // 4 // consultation with the Law Department and the Advocate General. It appears, pursuant to such rider in Annexure-10, Annexure-A/4 has been brought out looking to the resolution at Annexure-10. This Court finds, these are mere modalities to implement the recommendation of the Task Force. This Court at the cost of repetition finds, the Sub-clause 7 of Clause 48 the recommendation already excluded the single allottees like that of the Petitioner and the resolution or the communication at Annexure-A/4 has nothing to do with the exclusion made in the recommendation of the Task Force as there is no involvement of any restriction thereby through the Task Force even. the communication of 8. Coming back to the challenge of the Petitioner to the order vide Annexure-4 a show cause, this Court here considering the claim of the Development Authority that the show cause notice is an outcome of the recommendation of the Task Force followed by the resolution and the Government vide Annexure-10 and Annexure-A/4 and for the observation already there to exclude the single allottees like that of the Petitioner, this Court observes, there is no requirement of issuing show cause notice vide Annexure-4, which is, hereby, quashed and all consequential decision pursuant to such show cause notice is also declared as bad. For the setting aside of the show cause notice at Annexure-4 and since there is already allotment of a plot bearing No.134F/1459 in Bidanasi plotted housing scheme in Sector-13, this Court directs, the process for handing over of the possession of the land involved to the Petitioner be expedited and completed within a period one month from the date of communication of an authenticated copy of this judgment by the Petitioner.
Decision
9. The writ petition succeeds to the extent indicated hereinabove. There is, however, no order as to the costs.” 5. While disposing of W.P.(C) No.5274 of 2022, this Court observed that there was no requirement to issue show cause notice to the persons, who were allotted single plot by the CDA. Accordingly, lease deed in favour of the Petitioner was executed W.P.(C) No. 17315 OF 2023 Page 4 of 10 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Jan-2024 18:33:25 // 5 // under Annexure-8. Thereafter, the Petitioner submitted an application before CDA to supply an application form for 3rd party transfer of the case land, which was refused vide letter dated 8th May, 2023 (Annexure-9 series) in view of the resolution No.35008 dated 8th December, 2022 issued by the General Administration and Public Grievance Department, Government of Odisha. The relevant clause of the said resolution by which the Petitioner is aggrieved reads as under: “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.” 6. It is submitted by Mr. Nayak, learned counsel for the Petitioner that the refusal letter dated 8th May, 2023 was issued on the ground that only transfer of land to the legal heir has been excluded from the task force report. Thus, a 3rd party transfer is not permissible. It is his submission that since the resolution dated 8th December, 2022 creates confusion and is without any legal basis, the same should be struck down. There cannot be any discrimination of transfer of the land allotted by the CDA under discretionary quota to the legal heirs of the allottee and 3rd Party. He, therefore, prays for setting aside the resolution dated 8th December, 2022 and refusal letter dated 8th May, 2023 under Annexure-9 series. 7. In course of hearing of the matter, this Court on 20th December, 2023 passed the following order: “1. This matter is taken up through hybrid mode. W.P.(C) No. 17315 OF 2023 Page 5 of 10 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Jan-2024 18:33:25 // 6 // 2. Hard copy of the affidavit filed by the Opposite Party No.2 is taken on record. 3. Affidavit filed by Opposite Party No.2 does not contain the reason of confining the transfer to the legal heirs of the allottee only. On the other hand, it appears from the final allotment order at Annexure-1 series that no such restriction was there in the allotment order itself. On the other hand, the allottee was allowed to transfer the land with prior approval of the lessor [in the instant case Cuttack Developmental Authority (CDA)]. When the single allotment under Discretionary Quota was released from the Task Force Report, this Court prima facie does not find any reason as to why Government has put a clause that the transfer of such allotment shall be confined to the legal heirs of the original allottee only. Hence, the Opposite Party No.2 is directed to explain the same by filing an affidavit. 4. Mr. Mishra, learned Additional Government Advocate prays for two weeks time to file such affidavit. Let affidavit be filed by 9th January, 2024 5. serving copy thereof on learned counsel for the Petitioner and learned counsel for the CDA. 6. Put up this matter on 16th January, 2024.” 8. Pursuant to the said direction, an affidavit is filed by the Deputy Director of Estate, General Administration and Public Grievance Department, Government of Odisha in Court today, which is taken on record. Paragraph-5 of the said affidavit reads as under: “5. That it is humbly submitted that on receipt of task force report and after approval of the cabinet on the said report the Govt. has made the Resolution No.35008/General, BBSR dt. 08th December, 2022, the very objective of the resolution is that the single allotment of the Discretionary Quota or the single allottee getting allotment through fair means by following the prescribed those have already procedure and provision transferred the allotment to his/her legal heirs to be remained out of the purview of task force. It is W.P.(C) No. 17315 OF 2023 Page 6 of 10 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Jan-2024 18:33:25 // 7 // that either single allottee implied under Discretionary Quota or their legal heirs will be out of purview of the task force report. It is submitted that subsequent transfer of Discretionary Quota either to the 3rd party or to the legal heirs does not put any condition in the said resolution. It is now under the purview of development authorities to decide their prevailing norms. Since inclusion of legal heirs is the decision of the cabinet, the same is a policy decision.” transfer as per the subsequent 9. Mr. Mishra, learned Additional Government Advocate relying upon the aforesaid averment submits that the Government has not imposed any the Development Authorities to transfer the land to 3rd parties by virtue of resolution dated 8th December, 2022. The resolution restrictions on only clarified that either single allottee under the discretionary quota or their legal heirs will be out of the purview of task force report. The subsequent transfer of plot/house/flat under the discretionary quota either to the 3rd party or to the legal heirs of the allottee is at the discretion of the Development Authorities. They are free to take a decision on the same on the facts and circumstances of each case as per their prevailing norms for transfer of plot/house/flat. He, therefore, submits that the resolution dated 8th December, 2022 needs no interference. 10. Mr. Mohapatra, learned counsel for Opposite Party No.4- CDA submits that the CDA was handicapped in allowing 3rd party transfer basing upon the resolution dated 8th December, 2022. Since it is clarified by the State Government in the counter affidavit, the CDA will take a decision in respect of allotment of single plot/house/flat under the discretionary quota W.P.(C) No. 17315 OF 2023 Page 7 of 10 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Jan-2024 18:33:25 // 8 // as per its prevailing norms of transfer depending upon the facts and circumstances of the each case. He further submits that apart from the above, the Petitioner along with his application for 3rd party transfer has to file an affidavit specifying that he or his family members do not own or possess any plot/house/flat within CDA area as on the date of filing of the application for 3rd party transfer. If the Petitioner makes a fresh application complying with the aforesaid requirement following due procedure, the same shall be considered accordingly. 11. Mr. Nayak, learned counsel for the Petitioner, however, refutes the submission of Mr. Mohapatra, leaned counsel for the CDA stating that the affidavit in respect of acquisition of land subsequent to the allotment of case land is not necessary, as the Petitioner had already submitted such an affidavit along with application for allotment of the case land under discretionary quota. The Petitioner has never suppressed any facts at the time of making application for allotment of the case land. Hence, further affidavit of acquisition of land will create confusion. 12. Heard learned counsel for the parties and perused the case record. 13. The issue in the present writ petition involves grant of permission for 3rd party transfer of the case land, which was allotted in favour of the Petitioner under discretionary quota. It is not in dispute that the Petitioner was not allotted any other plot under the discretionary quota or otherwise. Mr. Nayak, learned counsel also made a submission that at the time of making application for allotment of the case land, the Petitioner had W.P.(C) No. 17315 OF 2023 Page 8 of 10 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Jan-2024 18:33:25 // 9 // submitted an affidavit stating that he or his family members do not possess any land in CDA area. Considering the same, allotment under the discretionary quota was made. Since the Petitioner had already submitted an affidavit, as aforesaid, on the date of application of allotment of case land, he is not required to submit any subsequent affidavit of acquisition of any subsequent land either by him or by his family members in CDA area, as it is inconsequential for transfer of the case land. 14. So far as the observation in the resolution dated 8th December, 2022 issued by the GA and PG Department, Government of Odisha is concerned, it has been clarified by the Department that the resolution does not prohibit any 3rd party transfer. The resolution has only clarified that single allotment of plot/house/flat under the discretionary quota through fair means following procedure and provisions of allotment shall be out of the purview of the task force. Thus, the allottee and his/her their legal heirs will be out of the purview of task force report. It has also been clarified in the said affidavit that 3rd party transfer of single allotment under the discretionary quota is under the discretion of the Development Authorities. In the instant case, the CDA has to take an independent decision in the matter of 3rd party transfer of the case land, as the case land appears to be out of task force report. 15. In view of the discussions made above, this Court is of the considered opinion that the CDA has no impediment to issue application form in favour of the Petitioner for 3rd party transfer of the case land. In case such an application is filed along with W.P.(C) No. 17315 OF 2023 Page 9 of 10 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Jan-2024 18:33:25 // 10 // the relevant documents and information required, the same shall be considered keeping in mind the discussions made above. It is made clear that the affidavit with regard to acquisition of land by the Petitioner or his family members in the CDA area after the application for allotment of the case land was submitted will be of no consequence for 3rd Party transfer of the case land. Thus, it shall not be insisted upon by the CDA. Accordingly, Letter No.6430 dated 8th May, 2023 (Annexure-9 series) issued by the Secretary, Cuttack Development Authority is set aside. 16. The writ petition is allowed to the aforesaid extent. 17. As requested, a copy of this judgment shall be made over to Mr. Mishra, learned Additional Government Advocate for communication. Urgent certified copy of this judgment be granted on proper application. (K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated 30th January, 2024/Madhusmita W.P.(C) No. 17315 OF 2023 Page 10 of 10