Orissa High Court
Case Details
A.F.R. ORISSA HIGH COURT : C U T T A C K W.P.(C) NO.18169 OF 2023 An application under Articles 226 & 227 of the Constitution of India. Jyoti Prakash Misra : Petitioners -Versus- State of Odisha and another : Opposite Parties For Petitioner For O.Ps. : Mr.R.Roy, Adv. Mr.S.K.Singh, Adv. Mr.N.Hota, Adv. Mr.S.Sourav, Adv Mr.T.P.Tripathy, Adv Mr.A.Mohanty, Adv. : Mr.S.Ghosh, AGA Mr.D.Mohapatra, Adv. J U D G M E N T CORAM : JUSTICE BISWANATH RATH Date of Hearing & Judgment : 07.07.2023 1. This Writ Petition involves the following prayer:- <It is therefore, prayed that the Hon’ble Court may graciously be pleased to issue rule NISI calling upon the Opp. Parties more particularly Opp. Party No.2 to show cause as to why the grievance of the Petitioner vide her representation dtd.02.05.2023 under annexure-8 shall not be judgment considered dtd.12.10.2022 of the Hon’ble Court passed in W.P.(C) No.12489 of 2022- Dr. Shashwati light of the the in Page 1 of 11 // 2 // Mohapatra vrs. State of Odisha & another under annexure-7 and a lease-cum-sale deed be executed in his favour in respect to her allotted HIG Plot bearing K-8/255 under Kalinga Nagar Plotted Development Scheme by the Bhubaneswar Development Authority, And if the Opp. Parties failed to show cause or show insufficient case, then make the said rule absolute by directing the Opp. Parties to forthwith consider the grievance of the Petitioner under annexure-8 and if his case is covered by the judgment dtd.12.10.2022 passed in the case of Dr. Shashwati Mohapatra vrs. State of Odisha, forthwith execute the lease-cum-sale deed in respect to his allotted HIG Plot bearing K-8/255 under Kalinga Nagar Plotted Development Scheme by the Bhubaneswar Development Authority, And further be pleased to pass any other order/orders as may be deemed fit and proper in the interest of Justice, And for the act of kindness, the Petitioner shall as in duty bound ever humbly pray.= 2. Reading the prayer, the allegation herein appears to be the party in possession receiving the property of the owner at 1st hand but pre-handing over possession stage making an application for execution of the deed on 02.05.2023 vide Annexure-8 is not being worked out. Further Petitioner also makes a prayer for considering its representation dated 02.05.2023 vide Annexure-8 keeping in view the observation of this Court in the judgment dated 12.10.2022 in W.P.(C) No.12489 of 2022 finds place at Annexure-7. Page 2 of 11 // 3 // 3. Plots involved herein appears to be HIG Plot bearing K- 8/255 under Kalinga Nagar Plotted Development Scheme at the instance of the Bhubaneswar Development Authority. 4.
Facts
Background involving the case appears to be one Chandrakant Mohapatra was the original allottee of HIG Plot bearing Plot No.K-8/255 under Kalinga Nagar Plotted Development Scheme, Bhubaneswar vide Registration No.URD/00022/88. It is on the request of the 1st allottee Chandrakant Mohapatra, the HIG Plot bearing Plot No.K-8/255 was transferred in the name of the present Petitioner by the B.D.A vide its Office Order dated 21.01.1998 who has even deposited the amount in respect of the said plot for being transferred in the name of the Petitioner presently under the same terms and conditions. Undisputedly, the Development Authority already handed over physical possession of the said plot to the Petitioner through an Amin on 31.01.2006. In the meantime, it appears in 2010, the Development Authority accorded permission for construction of a double storied residential building over the plot involved again in favour of the present Petitioner. Even in the meantime in 2011, there has been issuing of a No Objection Certificate in favour of the Petitioner for the purpose of mortgaging the plot with State Bank of India subject to execution of Tripartite Agreement in terms Page 3 of 11 // 4 // of B.D.A. format. On the strength of above No Objection Certificate (NOC) a Tripartite Agreement has also been executed in the involvement of the Petitioner, the Development Authority and the State Bank of India as well for availing bank loan. 5. It is here alleged that for intervention of the Task Force Committee Report, though such report is not application to the case at hand there has been unnecessarily creation of difficulty in regularizing the Plot in favour of the Petitioner. The Petitioner
Legal Reasoning
further claims, for the observation of this Court in the judgement of this Court in W.P.(C) No.12489 of 2022 delivered on 12.10.2022, that the Task Force exceeded its jurisdiction in touching issues not assigned to it well covers the case of the Petitioner. Petitioner thus claims parity in the treatment in terms of the judgment in W.P.(C) No.12489 of 2022 delivered on 12.10.2022 in allowing the Writ Petition. 6. On notice there has been filing of counter affidavit by the respective Opposite Parties. The counter affidavit on behalf of Opposite Party No.1 basically shifts the burden to the Development Authority. So far it relates to the claim of the Petitioner based on the judgment indicated hereinabove, the Opposite Party No.1 however claimed judgment referred has clarified the position and it is on the Development Authority to take a decision on the pending Page 4 of 11 // 5 // application of the Petitioner as reveals in paragraph-4 of the counter affidavit. Opposite Party No.1 also taken help of paragraph-11 & 12 in the said judgment through their averments in paragraph-6. 7. In the meantime the Development Authority-Opposite Party No.2 has also filed a counter affidavit. The counter affidavit even though did not dispute the position as on today on the basis of the judgment referred to hereinabove followed by a Government Notification vide Annexure-B/2 involving the case of the post allotment basis and that there is already a Government Notification to the said effect, there is however objection on the application of the judgment on the premises that the judgment never considered the case of pre-possession delivery, the Development Authority however seriously banking on restrictions through Annexure-B/2 submits in the circumstance they remain undone. 8. Mr.Roy, learned counsel for the Petitioner while reiterating the aforesaid recordings and strongly relying on the observation of the judgment on the applicability of the Task Force Report to the case at hand being thrashed out in the judgment in W.P.(C) No.12489 of 2022 and also the judgment otherwise supporting to the case at hand. Mr.Roy, learned counsel for the Petitioner also advanced his submission on Annexure-B/2 stating that Annexure- Page 5 of 11 // 6 // B/2 though strictly not applicable to the case at hand, however the observations of the Competent Authority running page -64 squarely covers the case of the Petitioner as the Competent Authority has already understood the excess action of the Task Force thereby also touching the non-issue and giving recommendation on non-issues. Mr.Roy, learned counsel for the Petitioner also contends, if there is room for condoning cases involving post possession transfers, there should not be any difficulty on the Development Authority in condoning the cases involving pre-possession transfer as later case stood on better footing. 9. Mr. Mohapatra, learned counsel for the Development Authority while retreating the counter averments of Opposite Party No.1 taking this Court to the plea of Opposite Party No.1 in paragraph-7 submits the judgment well covers post-possession transfers. The consequential notification of the Government also covers the case of post-possession. Mr. Mohapatra, learned counsel however contends since the judgment referred to herein did not touch pre-possession transfer as involved here, the case at hand stands on different footing and draws same analogy in respect of Government Notification also involved herein. There is however no denial to the development taking place right from permission for pre-possession transfer till plan approval in favour of the Petitioner Page 6 of 11 // 7 // and the B.D.A. even being a party to tripartite loan agreement involving same land. There is however no denial that there is no decision on the representation of the Petitioner as of now. Mr. Mohapatra, learned counsel therefore claims this is a pending case and liberty should be granted to the Opposite Party No.2 for taking a lawful decision on the same instead of this Court taking a decision at this stage of the matter. 10. Considering the rival contentions of the Parties, this Court finds, the dispute involves the following issues:- (1) If there is a reference dealing with the cases of pre-possession deliveries being conducted by the Task Force? (2) For there is already a judgment protecting the post transfer possessions, the pre-possession transfer since stands in a better footing, the judgment should have also applicable to the case at hand? 11. Considering the aforesaid questions involved herein this Court from the undisputed fact finds, originally the disputed land was assigned with one Chandrakant Mohapatra being the allottee in respect of the land involved in 1st hand and in the meantime there has been request by the 1st allottee namely Chandrakant Mohapatra to the Development Authority for transferring the name of the owner involving such plot in favour of the Petitioner. There is no denial that the Development Authority not only passed the Page 7 of 11 // 8 // order on 21.01.1998 permitting such transfer but long since the Development Authority has already transferred the physical possession of the plot to the Petitioner. The matter need not end here, after such development, there has been even agreement at the instance of the Development Authority in issuing NOC in favour of the Petitioner alone for the purpose of mortgaging the plot with State Bank of India to avail bank loan and there is also obtaining of loan on grant of NOC and agreement of the Development Authority to go ahead with the construction over the disputed plot again on a plan at the instance of the Petitioner being approved, in the process there has been loan investment on a plan approval by the B.D.A. claimed at the instance of the Petitioner and a building has already come to stand on the disputed property long since. This Court here observes, the case since involves pre-handing over the possession to the original allottee stands in much better footing than delivery of possession in case of post-possession one. Thus there is no difficulty in applying the judgment referred herein to the case at hand. This Court finds Mr.Roy, learned counsel for the Petitioner justified in making such a prayer. 12. Coming to the other aspects involved herein, if the Task Force exceeded its jurisdiction in opining on non-issues, this Court considering such issue in delivery of judgment in W.P.(C) Page 8 of 11 // 9 // No.12489 of 2022 has already come to observe in paragraph-6 in terms of reference to the Task Force which reads as hereunder:- <2. The Terms of Reference of the Task Force were further specified by Order No.22188 dated 11.08.2014. The mandate as modified in this specified Terms of Reference became as follows:- 1. The scope of review by Task Force will cover the period from 01.01.1995 to 31.07.2014 in Bhubaneswar and Cuttack urban areas in respect of (a) all cases of allotment of land/house/flat out of discretionary quota and (b) allotment of more than one unit of land/house/flat to members of the same family. 2. The Task Force should submit its findings and recommendations to Government within a period of four months. Simultaneously, the concerned agencies like BDA, CDA, OSHB and GA Department should take action on irregular allotments within this period.= Thus there remain no doubt that there was no such reference to the Task Force involving the dispute involved herein and the Task Force recommendation on non-reference aspect, if any, does not bind either state or the Development Authority so far it relates to pre-possession transfer or post possession transfer as it completely remain outside discretionary allotments. It is in the above background of the judgment in the aforesaid Writ Petition, this Court has clearly held the Task Force unnecessarily entered into non-issues and delivered its opinion on non-assigned issues, further observing opinion, if any, on non-issues has no binding effect in allowing the aforesaid Writ petition by the judgment dated Page 9 of 11 // 10 // 12.10.2022. There has been further development, the State Government in acceptance of the aforesaid judgment has already issued a notification vide Annexure-A/1 to the counter affidavit of Opposite Party No.1 so also Annexure-B/2 to the counter affidavit of Opposite Party No.2. This Court has no hesitation to hold here that case of the Petitioner particularly the case of pre-possession transfers stood in much better footing than the post possession transfers already involved therein. 13. For the observations herein and the Petitioner since stands in better footing than the cases involving post-possession, the judgment delivered in the aforesaid case is clearly applicable to pre-possession cases also. In the process this Court in allowing the Writ Petition with the aforesaid observations directs the Development authority to give a formal outcome to the representation of the Petitioner pending at its end vide Annexure-8 keeping in view the observations herein so also observations in the judgment in W.P.(C) No.12489 of 2022 at least within a period of four weeks from the date of communication of this order along with certified copy of judgment in W.P.(C) No.12489 of 2022 by the Petitioner. This Court hopes and trusts there should not be any embargo in entering into the lease deed required for the purpose which action may also be completed within one month after, the Page 10 of 11 // 11 //
Decision
decision in the pending representation. Allowing the Writ Petition may not be construed that there has been exemption of any other statutory conditions in entering into execution required to be complied by the parties involved before executing the lease deed. 14. The Writ Petition succeeds to the extent indicated herein. No costs. (Biswanath Rath) Judge Orissa High Court, Cuttack. The 7th July, 2023 /Swarna, Junior Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 10-Jul-2023 10:58:39 Page 11 of 11