The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18701 of 2024 Dr. Mrs. Premalata Mohapatro ….. Petitioner Mr. Lalitendu Mohapatra, Advocate -versus- 1. State of Odisha 2. Director of Estates & Ex- Officio, Addl. Secretary to Government, General Administration Deptt. 3. The Tahasildar, Bhubaneswar ..... Opposite Parties
Legal Reasoning
Mr. Arupananda Das, Addl. Government Advocate CORAM: THE HON’BLE MR. JUSTICE S.K. SAHOO THE HON’BLE MR. JUSTICE CHITTARANJAN DASH Order No.
Decision
ORDER 20.08.2024 01. This matter is taken up through Hybrid arrangement (video conferencing/physical mode). Heard learned counsel for the petitioner and learned counsel for the State. The petitioner Dr. Mrs. Premalata Mohapatro has filed this writ petition challenging the order vide letter no.13280 dated 29.05.2015 vide Annexure-5 passed by the opposite party no.2. Page 1 of 5 It is the case of the petitioner that in the year 1985, late Dr. Jagannath Mohanty applied for lease hold land situated in Nayapalli area, Bhubaneswar. Accordingly, he was allowed a piece of land measuring 70 ft. x 50 ft. vide plot no.15/5 in the Nayapalli area, Bhubaneswar and a lease deed was executed on 14.02.1985 between the Hon’ble Governor of Odisha and Sri Jagannath Mohanty and the land was leased out for the purpose of nursing home for the term of ninety years and necessary rent was fixed for such lease land. After execution of lease deed, the opposite party no.2- Director of Estates & Ex-Officio, Additional Secretary to Government, General Administration Department prepared a sketch map showing the plot of the petitioner and also possession of lease land has been given on 14.02.1985. It is the further case of the petitioner that Dr. Jagannath Mohanty was running his nursing home by constructing building and he expired in the year 1995 leaving the petitioner, who is his wife as his successor and after the death of Dr. Jagannath Mohanty, the lease land has been mutated in the name of the petitioner by the opposite party no.2 on the strength of the will executed and probated by the deceased lessee. Thereafter, the Tahasildar, Bhubaneswar issued R.O.R. in the name of the petitioner since 22.04.2003. A show cause notice was issued in the name of the husband of the petitioner on 06.09.2014 by the opposite party no.2 wherein it is stated that as per the report of D.M.E.T., Odisha, no clinical establishment has been opened as the plot allotted by G.A. Department during Page 2 of 5 1985 for establishment of nursing home, rather a double storied building has been constructed over the said plot and it is being used as Saraswati Sishu Mandir on hire basis, which is clear violation of terms and conditions of the lease. The show cause notice was issued to determine the lease as per clause 4(1) of the original lease deed and to resume possession taken over by the Government. The contention of the learned counsel for the petitioner is that the petitioner is still running her clinic for which the land was leased out, however in a portion of the building, Saraswati Sishu Mandir is running and the lease deed is silent about any additional land was allotted for the purpose of it was leased out. According to the case of the petitioner, by taking donation from Saraswati Sishu Mandir, she has been regularly conducting pre-health camp and distributing free medicine to the down trodden of the society, which is a part of function of the nursing home and it cannot be presumed that the lease has violated any terms to attract clause 4(1) of the lease deed. The clause 4(1) of the lease deed is quoted hereinbelow:- “Clause 4(1): that whenever any part of the premium as aforesaid and the rent hereby reserved shall be in arrears for six months after the due date or there shall be a breach of any of the covenants by the lessee herein contained the lessor may re-enter on the demise premises and determine lease in which case the lessor any, by notice, in writing require the ex-lessee Page 3 of 5 to remove within a reasonable time any building or structure which may have been commenced and not completed or the materials which may have been collected on the lease land, and if he fails to comply which 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 thereof from him.” Learned counsel for the State drew our attention to the lease deed, which is annexed as Annexure-1 wherein it is stated that it is to be used for industrial purpose i.e. nursing home and further it is mentioned that he shall hold or use the demised land only for commercial or industrial purpose and for no other purpose without previous sanction of the lessor or his agents. Admittedly, no previous sanction of the lessor has been taken for allowing the Saraswati Sishu Mandir to function on the lease land. The contention of the learned counsel for the petitioner and the averments taken in the writ petition that a part of the land is also being used for clinical purpose and in another part, Saraswati Sishu Mandir is functioning goes contrary to the material on record which indicates that the lease plot is being utilized as a private school i.e. Saraswati Sishu Mandir on rent basis. Therefore, we are not inclined to enter into the disputed question of Page 4 of 5 fact, particularly, when it is apparent that the petitioner has flouted the terms and conditions of the lease deed and has not taken the previous sanction of the lessor to allow Saraswati Sishu Mandir to function in a building standing over the lease plot. Moreover, the petitioner approached this Court earlier in W.P.(C) No.11308 of 2015 making the similar prayer and it was disposed of on 13.02.2023. In view of the foregoing discussions, we find no infirmity or illegality in the order dated 29.05.2015 vide Annexure-5 wherein the opposite party no.2 after carefully considering all the aspects and taking into account the latest field verification report of the Joint Physical Inspection Team dated 03.09.2014 has been pleased to determine the lease on the plot no.15/05, Drg. No.C-7325 of Mouza- Jayadev Vihar and ordered that the possession over the land be resumed which was taken over through the departmental R.I. Accordingly, the writ petition being devoid of merits, stands dismissed. Urgent certified copy of this order be granted as per rules. Judge ( S.K. Sahoo) Judge Signature Not Verified RKM Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Aug-2024 11:37:18 Page 5 of 5 ( Chittaranjan Dash)