Orissa High Court
Ashok Kumar Misra vs State Of Orissa And Others .... Opposite ... on 5 August, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.550 of 2020
Ashok Kumar Misra .... Petitioner
Mr. Budhadev Routray, Senior Advocate
-Versus-
State of Orissa and others .... Opposite Parties
Mr. S.B. Mohanty, AGA
CORAM:
JUSTICE DIXIT KRISHNA SHRIPAD
ORDER
Order No. 05.08.2025
06. Shorn off thick pleadings of the case, the essential
grievance of the petitioner is as to levy of "consent fee", in
addition to conversion fee, for making the subject property in lease
a freehold.
2. Learned Senior Counsel appearing for the petitioner states
the following foundational facts.
2.1. Admittedly, the subject property belonged to the
ownership of State Government and it granted a registered lease
dated 07.12.1990 in favour of transferer of the petitioner herein for
a tenure of 90 years. The lessee, namely, Mr. Sadananda Ramanuja
Das obtained permission to transfer the leasehold in favour of the
petitioner, vide order dated 09.10.1985, and accordingly he made
gift of the subject property vide registered deed dated 14.10.1985.
2.2. Petitioner remitted penalty of Rs.40/- vide challan dated
30.10.1990 and informed the Bhubaneswar Development
Authority (BDA) of the same vide letter dated 31.10.1990. BDA
granted permission and approved the Building Plan for the 1st floor
of the subject property vide document dated 26.11.1990.
2.3. Above being the position, the answering opposite party,
vide order dated 20.05.1998, enhanced the "consent fee" from 15%
to 25% of the existing premium; subsequently, by another order
dated 27.04.2006, there was further enhancement from 25% to
35%, in case of deviation of approved plan. In terms of new
Policies of 1998 followed by 2003, the answering opposite party
issued order dated 02.07.2018 fixing liability for payment of
"consent fee" quantified in a sum of Rs.86,77,686/-.
3. The above, according to the counsel, is absolutely
unauthorized. He contends that the policy levying financial
liability is always prospective, unless statutorily made
retrospective. In support of this, he presses into service a Division
Bench decision of this Court in W.P.(C) No.1085 of 2021 between
Sanjubala Mishra v. State of Odisha decided on 19.04.2021.
4. Learned AGA-Mr. Mohanty vehemently opposes the
petition contending that ownership of a property is a bundle of
rights; lease is defined as transfer of possession coupled with right
to enjoy the leasehold; if the lessee wants the property's interest to
be enlarged to the fullest to become the owner thereof, certain
conditions which the lesser prescribes have to be complied with;
such conditions are prescribed by the State Policies of 1998 &
2003; it is open to the lessee to comply with, if he wants the
property, and if he does not want one, he need not comply. As to
the Division Bench decision supra, he tells that it is fact specific
and, therefore, cannot be taken as laying down the law of universal
application.
5. Having heard learned counsel for the parties and having
perused the petition papers, this Court is inclined to grant leave to
the petitioner for the following reasons.
5.1. The statement of facts pleaded by learned Senior Counsel
appearing for the petitioner are not in dispute. There was a lease of
subject property; the lessee with the permission of the competent
authority transferred the leasehold to the petitioner, who had paid
the prescribed penalty to the authority in time; the purchaser of
leasehold had applied for conversion of the subject property to the
freehold and he was ready & willing to pay the conversion fee, as
prescribed by the extant Policy then. Therefore, he had a right to
get the leasehold converted into a freehold consistent with the
constitutional guarantee under Article 300A, as extensively
construed by the Apex Court in K.T. Plantation Pvt. Ltd. v. State
of Karnataka, (2011) 9 SCC 146.
5.2. The vehement submission of learned Senior Counsel for
the petitioner that in addition to paying conversion fee, he cannot
be asked to pay anything more than that, merely because
subsequent Policies provide for levy of "consent fee", finds force
from the observations of the Division Bench decision supra,
wherein paragraphs 9 & 13 read as under:
"9. When no response was received to the said
representation, the present petition was filed. In
response to the notice, a reply has been filed on
behalf of the Opposite Parties in which, inter alia,
it is not disputed that the Petitioners are the legal
heirs of the original lessee. However, it is sought
to be contended that they acquired the leasehold
rights of the land by way of a registered gift deed
and, therefore, were required to pay the consent
fee. It is further admitted by the Opposite Parties
that as per the Cabinet decision dated 11th
March, 1970 the consent fee ought to have been
charged at the time of granting permission to the
original lessee to transfer the land in favour of his
daughter by way of a gift deed. However, for some
reason, it was not realized at that point in time.
Therefore, as per the latest Government order,
consent fee was charged as per the prevailing
market value of the land.
13. Consequently, the impugned demand raised by
the Opposite Parties by letter dated 25th June,
2020 is modified by setting aside the demand of
Rs.1,62,68,267/- towards consent fee as a
condition for grant of permission to convert the
land from leasehold into freehold. In other words,
upon the Petitioners paying Rs.92,96,153/-
towards the conversion fee, the necessary steps
will be taken by the Opposite Parties to pass
orders in that regard."
5.3. The vehement submission of learned AGA-Mr. Mohanty
that the decision of the Division Bench is case specific and does
not lay down law of universal application, is bit difficult to
countenance. Fact matrix of petitioner's case approximates to that
of the Division Bench decision and, therefore, on the principle of
parity also, regardless of arguable precedential value of the said
decision, relief has to be accorded to the petitioner, there being no
scope for a differential treatment.
5.4. Learned AGA is right in telling that petitioner is liable to
pay conversion fee with interest @ 12% per annum with effect
from 23.12.2019, since there is nothing on record to show that the
petitioner, who wanted to become absolute owner of the subject
property, had offered to make payment of conversion fee to the
concerned authority. All these years, what was payable to the State
has remained in the pocket of petitioner to his advantage and to the
disadvantage of State Exchequer. Levy of interest of delayed
payment, is consistent with the principles on which the Parliament
has enacted the Interest Act, 1978. The contention of learned
Senior Counsel that no interest should be levied, inasmuch as he
had interim order of stay secured at the hands of a Coordinate
Bench of this Court, is no answer, because it is he, who had
secured such an order, and added it is only interim order, which
would obviously be subject to final outcome.
5.5. Petitioner has filed a memo to the effect that he would
remit the amount within one month reckoned from this day. The
said memo reads as under;
"The amount of Rs.24,79,339/- will be paid by the
petitioner as per the direction of this Hon'ble
Court in its order dated 05.08.2025 within one
month from today along with interest as directed."
In the above circumstances, writ petition is allowed
conditionally. A Writ of Certiorari issues quashing the impugned
order dated 23.12.2019 at Annexure-1, only to the extent it levies
"consent fee". The liability to pay the conversion fee is kept intact
for discharge within a period of one month, as stated in the memo
of the petitioner, with interest @ 12% per annum reckoned from
23.12.2019. In the event the payment, as directed/undertaken
above, is not made, the writ petition shall be deemed to have been
dismissed and petitioner shall not be permitted to draw any milk
under this judgment.
Now, no costs.
( Dixit Krishna Shripad )
Judge
Anisha
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 08-Aug-2025 19:22:33
