Kushasanmohanty vs State Of Odisha And Others
2023 Latest Caselaw 3624 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                           WP(C) No.4768 of 2016
   KushasanMohanty                                 ....                      Petitioner
                                        -versus-
   State of Odisha and others                      ....              Opposite Parties


   Advocates appeared in this case :

   For Petitioner :              Mr. P.K. Rath, Advocate

   For Opposite Parties : Mr. G.N. Rout, A.S.C.


   CORAM:
   JUSTICE ARINDAM SINHA
   JUSTICE SANJAY KUMAR MISHRA

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        Dates of hearing: 31.01.2023, 11.04.2023 and 18.04.2023
      Date of Judgment: 18.04.2023
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   ARINDAM SINHA, J.

1. Petitioner is a lessee. He has constructed his house on the

leasehold. He has disclosed Scheme of Conversion of Residential

Lands of General Administration Department within Bhubaneswar

Municipal Corporation Area from Leasehold System of Land Tenure

to Freehold Tenure, 2003, in the petition.

2. Mr. Rath, learned advocate appears on behalf of petitioner and

submits, pursuant to aforesaid scheme, his client applied for

conversion on 10th December, 2003. There was purported enquiry

made and assessment, to result in demand of Rs.28,926/- as

conversion fee for commercial user of the plot, informed to petitioner

by communication dated 29th May, 2008. His client protested by letter

dated 24th June, 2008. Text of the letter is reproduced below.

"With reference to G.A. Department letter No.CA(NP)230/08 8459/CA dt. 29.05.2008 directing me to deposit a sum of Rs.28,926/- for conversion of lease hold plot into free hold I am to request you that the amount fixed for payment by me is much higher. I have neither constructed the first floor building over the ground floor till today nor given the building on rent. As myself and my family are residing in the building this may be treated as residential category.

I, therefore, request your honour to kindly take steps for re-verification and accordingly revise the amount for which I shall remain ever grateful."

(emphasis supplied)

His client sent further letter dated 18th October, 2008, again

requesting, inter alia, re-verification. The administration conducted

another enquiry. Report of the enquiry is dated 14th November, 2008.

Mr. Rath submits, comment expressed in the report is that his client

said he had not given, let out on hire to Sri Manoj Kumar Ojha, who

was occupying a portion of the building. Mr. Rath submits further,

there was exchange of correspondence, including threat by the

administration to treat as automatically cancelled, the sanction of

conversion unless fee of Rs.28,926/- was deposited. This resulted in

his client approaching the Hon'ble Chief Minister. Thereupon

impugned communication dated 8th April, 2015 was issued by the

administration. He submits, the communication said his client cannot

now be allowed to deposit the conversion fee, which was calculated

basing on bench mark value prevailing in year 2008, as the same had

been revised thrice, in 2009, 2012 and 2014. Impugned

communication should be set aside and quashed. His client's request

for assessment of the conversion fee on his said application dated 10th

December, 2003 restored for consideration.

3. Mr. Rout, learned advocate, Additional Standing Counsel

appears on behalf of State. He submits, during course of hearing and

pursuant to direction made, affidavit dated 17th April, 2023 has been

filed by petitioner. It clearly vindicates stand taken by State in having

initially assessed and issued demand for conversion fee to be

deposited, on said conversion application dated 10th December, 2003.

Also thereafter in dealing with petitioner's request to assess the fee on

residential basis and ultimately his acceptance, much later, of the

conversion fee assessed in year 2008. He submits, there should not be

interference.

4. There is no dispute that petitioner had applied for conversion

by his application dated 10th December, 2003. The conversion fee

assessed on commercial basis and informed to petitioner was much

later, by communication dated 29th May, 2008. Petitioner in not

depositing the demanded fee had sought for re-verification on user of

the premises. It will appear from above quoted letter dated 24th June,

2008 of petitioner that the assertion was, not having given the

building on rent. Subsequently, by letter dated 18th October, 2008

petitioner had sought re-verification regarding commercial user.

There was re-verification and report dated 14th November, 2008 as

aforesaid. We reproduce below the report.

"Verified the site bearing drawing plot no.N-6/295 of mouza: Jayadev Vihar Unit no.16 and on during field enquiry the lessee was present and he says he is residing in his building and another person Sri Manoj Ku. Ojha working as Pharmacist under Usti Hospital is residing

there over one portion of building in rear side. The details use of building is given below.

Ext. Single storied building making deviation of approved plan (full deviation)

Lessee residing Part of building in rear with his family used by the relative of lessee (Sri Kushasan Mohanty) Major portion of building Sri Manoj Ku. Ojha with his family working as Pharmacist under Usti Hospital

The lessee says he has not given let out on hire to Sri Manoj Ku. Ojha.

Submitted for kind information and n.a."

(emphasis supplied)

5. We have perused materials on record. There does appear the

administration was under impression that petitioner had let out to a

person staying in the building. However, for the purpose of

determining the fees payable for conversion, it had to be ascertained

as to whether petitioner was using the building or part thereof for

commercial purpose by having let it out on rent. It is immaterial as to

whether the tenant was related or not related to petitioner. Payment

and acceptance of rent was required to be established, for a demand

made of conversion fee on commercial basis. This appears not to have

been done.

6. We have scrutinized petitioner's letters dated 24th June, 2008

and 18th October, 2008. He was consistent in saying that he had not

collected any rent for having let out a part of the building. It will

appear from the reproduction of said report dated 14th November,

2008 that in perception of the person making the enquiry, part of the

building in rear was found to be used by the relative of the lessee.

However, the report says that during field enquiry, the lessee was

present and he said he is residing in his building and Sri Ojha was

also residing in a portion. Lastly the reporter commented that the

lessee said he had not given or let out on hire to Sri Manoj Ojha. The

person making the enquiry did not report petitioner to have claimed

that Mr. Ojha was his relative. The enquiry also did not reveal

transaction of tenancy in the premises.

7. It is true that pursuant to interlocutory order made in the writ

petition, the affidavit has come in, from which it is clear that the

person who was allowed to stay in the building was not and is not

related to petitioner. It is significant that two enquires did not reveal a

single rent receipt or at least, a statement made by some person that

petitioner had given on rent to Sri Ojha.

8. For reasons aforesaid, we direct opposite party no.2, in

peculiar facts and circumstances of this case, to re-assess demand for

conversion fee, to be paid by petitioner, on commercial basis as

prevailing in year 2015 since, by his said affidavit dated 17th April,

2023 petitioner admits he had let out in that year. The demand, as

assessed, is to be informed to petitioner within three weeks from date,

giving him 30 days to pay the demand, failing which the facility of

conversion will stand automatically cancelled or revoked.

9. The writ petition is disposed of.

( Arindam Sinha ) Judge

( S. K. Mishra ) Judge

P. Pradhan