The High Court
Case Details
Order No. 7. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.25972 of 2022 Rupesh Kumar Adhikari …. Petitioner Mr. Sukanta Kumar Dalei, Advocate on behalf of Mr. Pratik Dash, Advocate State of Odisha -versus- …. Opp. Party Mr. Baibaswata Panigrahi, Additional Standing Counsel CORAM: JUSTICE K.R. MOHAPATRA
Decision
ORDER 13.04.2023 1. This matter is taken up through Hybrid mode. 2. Order dated 3rd September, 2022 (Annexure-13) passed by the Deputy Director of Estates-cum-Joint Secretary to Government in the Department of General Administration and Public Grievance, Government of Odisha is under challenge in this writ petition, whereby the lease deed executed on 17th June, 2021 presented by Petitioner for its execution in favour of Nursingha Adhikari, Jagannath Adhikari, Lokanatha Adhikari and Rajesh Kumar Adhikari by virtue of General Power of Attorney (GPA), has been returned to the Petitioner. 3. Mr. Dalei, learned counsel appearing for the Petitioner submits that the only ground on which the lease deed was returned and thereby refused to be executed in favour of the above named persons was that the lease deed could not be executed by the Petitioner on behalf of the above named persons by virtue of a GPA. It is submitted that residential Plot No. N/6-82 measuring an area 35 X 50 feet as per Drawing No.BS- 136 at Nayapalli, Bhubaneswar for residential purpose was Page 1 of 6 // 2 // decided to be leased out in favour of Chhabilal Adhikari in the year 1974 by the then Political and Services Department by its Order No.B-403 dated 3rd February, 1974 under Annexure-1. Due to some difficulty in allotting the said plot, the Government in the Department of Political and Services leased out Plot No.N/6-316, Drawing No.BS-316 corresponding to Revenue Plot No. 2060/3267 under Khata No. 1427 of mouza- Jayadev Vihar, Bhubaneswar (for brevity ‘the case land’) in favour of Chhabilal Adhikari. After his death, his legal heirs, namely, the above named persons executed a GPA in favour of the Petitioner to sign and execute the lease deed on their behalf. But the same was returned vide letter under Annexure-13 on the ground that the lease deed could not be executed by virtue of a GPA. It is his submission that there is no legal bar for execution of a lease deed in favour of legal heirs of said Chhabilal Adhikari on the basis of the GPA. He, therefore, prays for setting aside the impugned order and to direct the Opposite Party to execute the lease deed in favour of the above named persons. 4. Mr. Panigrahi, learned ASC referring to the counter affidavit, submits that one of the legal heirs, namely, Trinatha Adhikari has already expired in the meantime, as intimated by the Petitioner. He, however, referring to the counter affidavit submits that in order to avoid litigation and in order to facilitate registration of lease deed and other post-allotment issues, like mutation, conversion etc., Government have been pleased to pass an Order No.7738/CA dated 26th July, 2003 modifying the resolution dated No.1106 dated 18th July, 2003, in which it is categorically instructed not to entertain the GPA for execution Page 2 of 6 // 3 // of the lease deed. Since the lease-hold property belongs to Government, all related documents have to be executed by the Lessee/legal heirs. Entertaining a GPA may unnecessarily invite litigation. 5. Considering the submission of learned counsel for the parties, vide order dated 16th February, 2023, learned ASC was required to obtain instruction to the effect that ‘as to whether, the resolution No.1106 dated 18th July, 2003 and order No.7738/CA dated 26th August, 2011 (Annexure-B series) are applicable for execution of the lease deed by a Power of Attorney of the legal heirs of the lessee. He, shall also make submission with regard to applicability of Sections 32 and 33 of the Registration Act, 1908 to the case at hand on the next date.’ 6. On instruction, Mr. Panigrahi, learned ASC files a compliance affidavit of the Opposite Party of the even date serving copy thereof on Mr. Dalei, learned counsel for the Petitioner, which is taken on record. In the said affidavit, the Opposite Party has only reiterated the averments made in para- 10 of the counter affidavit, but the specific query of this Court has not been answered. 7. Sections 32 of the Indian Registration Act, 1908 deals with person who may present document for registration and Section 33 deals with the Power of Attorney recognizable for the purpose of Section 32. For better appreciation, provisions of Sections 32 and 33 are reproduced hereunder:- “32. Persons to present documents for registration.— Except in the cases mentioned in 1[sections 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration-office,— Page 3 of 6 // 4 // (a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or (b) by the representative or assign of such a person, or (c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned. State Amendment Bihar: xxx xxx 33. Power-of-attorney recognizable for purposes of section 32.—(l) For the purposes of section 32, the following powers-of-attorney shall alone be recognized, namely:— xxx xxx xxx (a) if the principal at the time of executing the power-of-attorney resides in any part of 45 [India] in which this Act is for the time being in force, a power-of- attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub- district the principal resides; the (b) if time principal aforesaid 46 [resides in any part of India in which this Act is not in force], a power-of-attorney executed before and authenticated by any Magistrate; the at (c) if the principal at the time aforesaid does not reside in 45 [India], a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, 47 [Indian] Consul or Vice-Consul, or representative 48 [***] of the Central Government: Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely:— (i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend; (ii) persons who are in jail under civil or criminal process; and (iii) persons exempt by from personal this sub- in Court. 49 [Explanation.—In appearance section “India” means India, as defined in clause (28) of section 3 of the General Clauses Act, 1897 (10 of 1897).] law (2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid. (3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the Page 4 of 6 // 5 // person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination. (4) Any power-of-attorney mentioned this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf.” in 7.1 On perusal of the above provisions, it is apparent that there lies no impediment on the part of the Opposite Party for entertaining the lease deed presented by the POA for execution in favour of the legal heirs of the deceased Lessee Chhabilal Adhikari subject to production of relevant document(s) to that effect. Thus, the ground that a lease deed cannot be executed in favour of the legal heirs of Chhabilal Adhikari by virtue of a GPA cannot be sustained. 7.2. Since the lease deed has already been returned to the Petitioner and one of the legal heirs of the lessee has died in the meantime, the draft lease deed has to be submitted afresh for consideration. Accordingly, letter dated 3rd September, 2022 (Annexure-13) issued by the Deputy Director of Estates-cum- Joint Secretary to Government in the Department of General Administration and Public Grievance, Government of Odisha is set aside. 8. Since the application has already been returned to the Petitioner, this Court disposes of this writ petition with a direction that in the event a properly constituted draft lease deed in respect of the case land is submitted before the Deputy Director of Estates-cum-Joint Secretary to Government in the Department of General Administration and Public Grievance, Government of Odisha along with relevant documents for its Page 5 of 6 // 6 // execution, the same shall be considered in accordance with law, as expeditiously as possible preferably within a period of four month from the date of its submission. Issue urgent certified copy of the order on proper application. (K.R. Mohapatra) Judge s.s.satapathy Page 6 of 6