Dr. Shashwati Mohapatra vs State Of Odisha & Anr
2022 Latest Caselaw 5443 Ori

 AFR           IN THE HIGH COURT OF ORISSA CUTTACK

                             W.P.(C) No.12489 of 2022

    In the matter of an application under Articles 226 & 227 of the
    Constitution of India.
                                     -----------

    Dr. Shashwati Mohapatra                 ....        Petitioner

                                     Versus

    State of Odisha & Anr.                  ....         Opposite Parties

         For Petitioner          ... Mr.R.Roy, Advocate

         For Opposite Parties ... Mr. S.P.Panda, Additional
                                Government Advocate
                                Mr.D.Mohapatra, Advocate



                                JUDGMENT

PRESENT:

THE HONOURABLE JUSTICE BISWANATH RATH

Date of Hearing and Judgment: 12.10.2022

Biswanath Rath, J. Undisputed facts remains to be vide Annxure-2,

possession involving the disputed land was handed over by the

Development Authority in favour of one Choudhury Truptimayee Sahoo

appearing to be the first allottee of Plot No.K-8-665 vide Annexure-2. In

the meantime there appears there is application for transfer of this plot in

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favour of the present Petitioner and vide Annexure-3 there is grant of

permission. There is grant of permission of transfer of the above land to

the original allottee in favour of the present Petitioner. Further

undisputed fact remains to be on an application by the Petitioner for plan

approval, there is already approval of plan vide Annexure-4 and further

undisputedly there already exist a G+2 plot over the disputed property

being constructed by the Petitioner with due permission of the competent

authority.

2. The dispute arises here involving the Petitioner approaching the

development authority entering into the registration of the lease deed

involving the disputed land in favour of the Petitioner involving the first

hand transfer vide Annexure-1, the same appears to be rejected vide

Annexure-1 on the premises of impediment in view of observation in the

Task Force Report at para 48.7 vide Annexure-9 available at page-100 of

the brief. Mr.Roy, learned counsel for the Petitioner categorically

submits, for the reference involving the Task Force Report, issue

involved has no place to be considered in terms of the answer by Task

Force to such reference. Thus a request is made for interfering in the

impugned order at Annexure-1, setting aside the same and giving

suitable direction.

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3. Mr.Mohapatra, learned counsel appearing for the Development

Authority while not disputing on the facts of first allotment then entering

into permission for second party transfer, then involving an application

for plan approval and then in non-grant of plan approval and even on

existence of a G+2 storied building on the disputed plot further that there

has been disposal of request of second party involved herein denying a

request for entering in registration of lease agreement. However, taking

this Court to the observation of the Task Force find place particularly at

para-48.7 at pages-100 and 101 of the brief, Mr.Mohapatra, learned

counsel appearing for the Development Authority contends, there is

lawful rejection of the request of the Petitioner vide Annexure-1 and

thus requiring no interference by this Court. Mr.Mohapatra, learned

counsel appearing for the Development Authority however has no denial

on the terms of reference aspect involving the Task Force Report and

submits in any case, there cannot be avoiding of one Registration charge

involving initial allotment and the stamp fee and registration charge for

entering in direct registration of the lease deed with the Petitioner as the

subsequent allottee.

4. Mr.Panda, learned Additional Government Advocate however

while supporting the stands taken by Mr.Mohapatra, learned counsel

submitted in passing the final order, there should not be loss of revenue.

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Mr.Panda, learned Additional Government Advocate, however, did not

dispute the terms of reference involving the Task Force Report and that

there has been recommendation of Task Force at para-48 vide Annexure-

9 not applying to the case at hand.

5. Keeping in view the contest between the parties and reading

together with reason of rejection vide Annexure-1, this Court finds the

basis of rejection of execution of lease deed appears to be some

observations of the Task Force constituted by the Government of Orissa

involving the Task Force Report dealing with third party transfer before

execution of lease deed and observing execution of the lease deed in

favour of the third party as irregular. This Court here finds, sole question

required to be considered here is; if the recommendation of Task Force

remains beyond the terms of reference? and in such event if the

recommendation therein has any application to the case at hand.

6. Looking to the terms of reference at page-29 as relied on by all the parties, this Court finds the terms of reference involving the Task Force Report at Annexure-9 reads as follows:-

"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

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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."

Reading the first part of terms of reference, the report required to

be covering transaction in between 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

and as per terms of reference No.2, there is only time stipulation in

giving the findings to the Task Force Report and the recommendation

thereto. The case at hand neither involves allotment in discretionary

quota nor involves multiple allotment. This Court in answering the

question No.1 framed herein observes, issue involved here was not

within the purview of reference, thus answered in favour of the

Petitioner. Thus second question is bound to be answered in favour of

the Petitioner and is answered accordingly.

7. From the background involving the case narrated hereinabove, this

Court finds, the case of the Petitioner undisputedly not coming within

the purview of the assignment of the Task Force. Considering the

objection of Mr.Mohapatra, learned counsel appearing for the

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Development Authority in reference to para-48.7 appearing at page-100,

this Court clarifies, the recommendation therein shall be only in

reference to discretionary allotment and further multiple allotment, if

any, and in no case it shall include allotments outside above two

disciplines. Observation, if any, since beyond the discretionary quota

and/or multiple allotment are all beyond jurisdiction of the Task Force

and have nothing to play in the area as it is already beyond the reference.

8. It is in the circumstance, this Court finds there has been wrong

application of the Task Force Report to the case of the Petitioner and

thus the impugned order at Annexure-1 must suffer which is hereby sets

aside. This Court as a consequence directs the Development Authority to

immediately proceed to register the lease deed with the Petitioner but

however subject to following conditions.

9. Considering the further submission of the respective counsel on

the question of revenue, in the event of direction of registration of lease

between the parties, this Court here finds, there are some technical

difficulties in entering into the registration of the lease deed, as because a

lease property has already been entered into second transfer even

otherwise called as third party transfer and undisputedly there is no

registration of lease involving the first transfer in between the B.D.A and

the original allottee.

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10. Looking to the contingency required in entering into registration

of lease deed, there is requirement of deposit of certain amount towards

the registration fee with the Registering Authority, so far as first

registration is concerned, since the first hand delivery no more requires

registration taking into consideration that there is further transfer of same

property to the present Petitioner, there requires direct registration with

the present Petitioner, undisputedly the Registering Authority is entitled

to stamp duty as well as registration fee which cannot be avoided.

11. In the circumstance, this Court here records the undertaking of

Mr.Roy, learned counsel for the Petitioner undertaking to meet the fees

requirements involving the first registration and also the stamp duty as

well as registration fee involving second registration, both will be met by

his client while entering into registration of the lease deed. This Court

here records the statement of Mr.Mohapatra, learned counsel appearing

for the Development Authority that there since already a transfer

permission in favour of the present Petitioner, there is no difficulty in

directly entering into registration of lease deed with the present

Petitioner but subject to however Petitioner clears revenue aspects

indicated hereinabove. This Court therefore finds there is no difficulty in

getting into the registration of the lease deed in between the development

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authority and the Petitioner which will be however subject to compliance

of the undertaking given by the Petitioner.

12. Coming to the other issues involved herein as to what should be

the stamp duty and registration fee involving the registration required

herein, this Court makes it clear that since Petitioner has to pay stamp

duty as per the Bench mark value applicable on the date of application of

the Petitioner to the Development Authority for registration and admitted

registration fee, the Development Authority may find-out the date of

application as well as stamp duty application on such date within a

period of fifteen days and get itself ready with the lease deed and

communicate the Petitioner on her appropriate discharge. As a

consequence, the registration of lease deed may also be done within a

further period of fifteen days thereafter.

13. The Writ Petition succeeds but no order as to cost.

....................................

BISWANATH RATH, J.

Orissa High Court, Cuttack.

Dated the 12th day of October, 2022/Swarna, Junior Stenographer