Orissa High Court
Durdyodhan Mallik vs State Of Odisha & Ors. ......... ... on 19 September, 2024
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No.20831 of 2014
Durdyodhan Mallik ......... Petitioner
-Versus-
State of Odisha & Ors. ......... Opposite Parties
W.P.(C) No.20829 of 2014
Upendra Mallik ......... Petitioner
-Versus-
State of Odisha & Ors. ......... Opposite Parties
W.P.(C) No.20830 of 2014
Benga Mallik ......... Petitioner
-Versus-
State of Odisha & Ors. ......... Opposite Parties
Advocate for the parties
For Petitioner : Mr. J. Dash,
(In all the Writ Petitions) Advocate
For Opposite Parties : Mr. B. Panigrahi,
(In all the Writ Petitions) Addl. Standing Counsel
...................
CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of hearing : 28.08.2024 Date of Judgment : 19.09.2024
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S.K. MISHRA, J.
1. These Writ Petitions have been preferred challenging the certificate proceedings initiated against the Petitioners for recovery of differential unpaid bid amount of the Fishery Sairat Sources for different years ranging from 1998-99 till 2000-01.
2. The point of law involved in all these Writ Petitions is, whether certificate proceedings initiated against the Petitioners for recovery of the unpaid differential bid amount as an arrear of land revenue under the Orissa Public Demands Recovery Act, 1962, shortly, hereinafter "OPDR Act", in absence of a valid lease deed is maintainable. The point of law, being same in all the three Writ Petitions, on the request of learned Counsel for the Petitioners, have been heard together and are being disposed of vide this common judgment. For the sake of convenience and brevity, the facts dealt in W.P.(C) Page 2 of 32 No.20831 of 2024, (Durdyodhana Mallik Vs. State of Odisha & others) is taken up as lead case.
3. The factual matrix of the case in Durdyodhan Mallik (supra) is that there was a public auction for Rananadi Fishery Sairat under Banki Tahasil in the year 1998-99 vide auction notice dated 27.04.1998. The Petitioner took part in the said public auction and the said fishery was settled in his favour for an amount of Rs.18,125/-. Out of Rs.18,125/-, the Petitioner deposited Rs.4,510/- towards the first installment and Rs.4,400/- towards the second installment.
4. It is further case of the Petitioner that though the auction notice was published on 27.04.1998, the concerned Tahasildar adjourned the auction process from time to time. Ultimately, the fishery sairat was settled in favour of the Petitioner in the month of July, 1998, without proper agreement regarding auction and payment structure.
5. The Petitioner failed to pay the rest amount, as he suffered huge loss in the business due to less rain. The Page 3 of 32 Tahasildar issued notice on 26.11.1998 to the Petitioner to clear the unpaid dues by 30.11.1998 and execute the lease deed on stamp paper, failing which auction will be cancelled and there will be re-auction. Since the Petitioner failed to act in terms of the said communication, he was restrained from fishing from the Sairat. Thereafter the Tahasildar, Banki initiated certificate proceeding against the Petitioner, which was registered as Certificate Case No.100/01-02 and Warrant in Form No.A for attachment of movable property was issued to the Petitioner. In the certificate, issued by the Certificate Officer dated 05.02.2002, an amount of Rs.41,730/- was indicated to be due against the Petitioner, which exceeded more than the principal amount indicated in the demand notice.
6. It is further case of the Petitioner that a right to catch fish is a right to profits and is unquestionably immoveable property, requiring registration for its assignment. But in the instant case, no such agreement was executed with the Petitioner by the Opposite Party No.3 (The Tahasildar, Damapada). However, without considering Page 4 of 32 the case of the Petitioner with proper perspective, the certificate case was initiated against the Petitioner, which is illegal, as because section 2(g) of the OPDR Act defines "Public Demand" means any arrear of money specified in Schedule-I and includes any interest, which may by law be chargeable thereon up to the date, on which a certificate is signed under Chapter-II. Paragraph (iii) of Schedule-I prescribes that for any demand payable to the Collector by a person holding any interest, an agreement has to be executed by the person concerned with the Government. But in the instant case, there is no such agreement with the Government with regard to holding any interest about the fishery sairat. As such, the initiation of certificate proceeding against the Petitioner is bad in law.
7. It has also been urged in the Writ Petition that the Certificate Holder and the Certificate Officer being the same authority, the certificate case being in the nature of judicial proceeding, therefore the principle of judge of his own cause is applicable in this case. Hence, the initiation of certificate case is vitiated. Although the notice has been Page 5 of 32 issued to the Petitioner with regard to cancellation of fishery sairat and the money deposited by the Petitioner to be forfeited, without any reason, again certificate case has been instituted against the Petitioner, who is a very poor person and at present is unable to pay the demand issued by the Certificate Officer. However, based on such illegal action, the Certificate Officer is now threatening to auction the movable and immovable property of the Petitioner. Hence, such action is illegal and deserves interference by this Court. Accordingly, a prayer has been made to quash the proceeding in Certificate Case No.100/01-02 pending before the Court of Certificate Officer, Dampada against the Petitioner.
8. The State-Opposite Parties have filed a common Counter Affidavit stating therein that the auction notice was issued on 27.04.1998 fixing the auction date to 12.05.1998. However, due to some law and order situation, re-auction took place on 17.06.1998. The bid was knocked out in favour of the Petitioner at Rs.18,125/- in Sairat Case No.13-98-99 and Rs.76,150/- in Sairat Case No.14-98-99. Page 6 of 32 On the date of auction i.e. on 17.06.1998, the Petitioner deposited Rs.4510/- in Sairat Case No.13-98-99 and Rs.19,000/- in Sairat Case No.14-98-99 and he was directed to deposit the balance amount in three installments. The Petitioner/Auction Holder has signed the lease deed for lease of fishery, in which installment dates along with the terms and conditions have been detailed.
9. So far as the stand of the Petitioner regarding loss due to less rain in the said year, for which he failed to catch fish and pay the installments, has been denied in the Counter stating therein that the Petitioner had never approached the authority concerned regarding said difficulties during the said financial year. Rather, he continued to catch fish and also paid subsequent installments by depositing Rs.8,910/- in Sairat Case No.13- 98-99 and Rs.50,000/- in Sairat Case No.14-98-99.
10. Though the Petitioner/Auction Holder was noticed repeatedly for payment of installment, but at no point of time he was debarred from catching the fish from the source and the lease was also not cancelled for the said Page 7 of 32 year, as has been alleged in the Writ Petition. Rather, it has been alleged in the Counter that the Petitioner operated the source throughout the year without paying the balance amount intentionally. For such act of the sairat holder, at the end day of financial year i.e. on 31.03.1999, intimations were issued to the R.I., Talabasta for collection of the balance arrear dues in both the cases. Finally, when the R.I. failed to collect the dues, the certificate proceeding was initiated on 05.02.2002, which was registered as Certificate Case No.100/2001-02.
11. A further stand has been taken in the Counter that the total amount mentioned in the notice is principal with interest @ 12.5% per annum for 2 years, in terms of Section 14 of the OPDR Act. Since the Petitioner has signed the fishery lease on 17.06.1998, in terms of the point no.7 of the said agreement, the lessee shall not have any claim for remission or refund of the sum paid as consideration for his failure to utilize the fishery under any event and shall not be entitled to any compensation for any structures put by him. Hence, balance due payable along with interest Page 8 of 32 thereon was rightly treated to be a public demand under section 2 (g) read with paragraph (iii) of Schedule I of the OPDR Act.
12. In response to the stand of the Petitioner that the Certificate Holder so also Certificate Officer being the same officer, initiation of certificate proceeding against the Petitioner is bad, it has been stated that in the instant case, the Tahasildar, Banki (at present Tahasildar, Damapada) is the Certificate Holder who has filed requisition through Revenue Inspector, Talabasta before the Certificate Officer, Banki (now Damapada), who is also working as Tahasildar. All the Tahasildars and Additional Tahasildars, by designation, have been appointed as Certificate Officer vide letter dated 28.09.1976 of the Revenue Divisional Commissioner (Central Division), Cuttack which was subsequently communicated to all the Collectors vide letter dated 08.03.2001.
13. It has been stated that the Certificate Officer issued notice under section 6 of the OPDR Act, giving the Petitioner an opportunity to deposit the arrear dues or to Page 9 of 32 deny the liability within one month from the date of service of notice, in terms of section 8 of the said Act. Despite several notices, the Petitioner remained silent over the matter and even did not appear before the Certificate Officer. Hence, the Certificate Officer was being constrained to issue warrant of attachment. However, the Petitioner finally appeared on 10.03.2014 before the Certificate Officer and prayed for time up to July, 2014 for payment of arrear due.
14. Considering his prayer he was allowed time up to 15.05.2014 and the same was also intimated to him on 22.03.2014. But within the said period the Petitioner did not respond, for which he was again noticed on 23.05.2014 to pay the certificate dues by 09.06.2014, which also went in vain.
15. Finally the last notice was issued to the Petitioner on 25.09.2014 to deposit the arrear due by 22.10.2014, indicating therein that if the Petitioner fails to act in terms of the said notice, his movable/immovable property shall be Page 10 of 32 attached and such facts have been suppressed by the Petitioner in the present Writ Petition.
16. Apart from denying the allegations made in the Writ Petition, it has been urged that the Writ Petition is not maintainable as the Petitioner has approached this Court with uncleaned hands by suppressing material facts, as detailed above, so also on the ground of availability of alternative remedy under the OPDR Act, 1962.
17. Learned Counsel for the Petitioner, drawing attention of this Court to the so called lease deed at Annexure-E/3 series so also referring to Section 107 of the Transfer of Property Act, 1882 so also section 17 of the Registration Act, 1908, submitted that the said documents appended to the Counter are mere model form for large fishery form of lease deed for lease of fishery. As per the settled position of law, no lease deed was executed between the Petitioner and the Tahasildar, Banki in terms of the Registration Act, 1908.
Page 11 of 32
18. Learned Counsel for the Petitioner further submitted that the Petitioner had taken lease of fishery sairat for the financial year 1998-99, for which an amount of Rs.18,125/- was fixed as annual rent by the State Government. Based on the form of agreement, which is not a valid one, even though clause 13 of the so called lease deed prescribes that all appears of premium and other dues payable under lease shall be recoverable as arrear of land revenue, in absence of valid lease deed executed in terms of the Registration Act, 1908, the very initiation of certificate proceeding is bad and deserves interference.
19. Learned Counsel for the Petitioner further submitted that the plea of alternative remedy taken by the State-Opposite Parties is misconceived as the very initiation of certificate proceeding, based on an invalid document, is under challenge. As the Appellate Authority under the OPDR Act is incompetent to decide such an issue, the Petitioner has rightly approached the Writ Court challenging the certificate proceeding initiated against him. Page 12 of 32
20. To substantiate the stand taken in the Writ Petition regarding maintainability of the certificate proceeding, learned Counsel for the Petitioner relied on the judgments of the Supreme Court reported in AIR 1956 SC 17 (Ananda Behera & ors. Vs. State of Orissa & ors.), in AIR 1977 SC 2149 (Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. Vs. Sipahi Singh & ors.) judgments of this Court reported in 1986 (II) OLR 267 (State of Orissa Vs. Sashibhusan Mohapatra), and in 64 (1987) C.L.T. 644 (Aprati Sahu Vs. State of Orissa & ors.).
21. Per contra, learned Counsel for the State, drawing attention of this Court to the so called lease deed for lease of fishery, executed between the Petitioner and the State, submitted that the said lease deed was signed on 17.06.1998 and was for the financial year 1998-99, which ended on 31.03.1999. The period of lease deed being less than one year, there was no need to execute a registered lease deed, as has been stated by the Petitioner. Page 13 of 32
22. Learned State Counsel further submitted that in view of existence of the lease deed executed between the Petitioner and the State so also in terms of clause 13 of the said lease deed, the certificate proceeding was rightly initiated against the Petitioner for recovery of the unpaid bid amount for fishery sairat source for the year 1998-99, to be recovered as arrear of land revenue and the authority concerned has rightly initiated the certificate proceeding.
23. Learned Counsel for the State, drawing attention of this Court to section 107 of the T.P. Act so also section 17 (1) (d) of the Registration Act, 1908, submitted that since the lease period was less than one year i.e. from June, 1998 to March, 1999, it was not necessary to register the said lease deed and the Tahasildar has rightly entered into such lease deed in the prescribed form in plain papers, as has been disclosed vide Annexure-C/3 series to the Counter Affidavit.
24. From the pleadings on record so also submissions made by the learned Counsel for the parties, Page 14 of 32 the following legal points emerge to be answered in the present case :
i) Whether the lease deeds in question, as at Annexure-E/3 series to the counter filed by the State, were required to be stamped under the Stamp Act, 1899 and registered in terms of Section 17 (1) (d) of the Registration Act, 1908?
ii) Whether the certificate proceeding, which was admittedly initiated against the Petitioner, based on an unstamped and unregistered lease deed for lease of fishery sairat, is maintainable?
25. Since the answer to the Point No.2 would be dependent on Point No.1., both the said points are dealt with together for the sake of brevity and convenience.
26. Before dealing with the above points, it would be apt to extract below Section 107 of the Transfer of Property Act, 1882 Section 2 (6) and Section 17 (1) (d) of the Registration Act, 1908 so also Section 2 (g) and Clauses (iii) and (iv) in Schedule-I of the OPDR Act, 1962 :- Page 15 of 32
Transfer of Property Act, 1882 ""107. Leases how made. A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
[All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
"[Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:] Provided that the State Government may from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.["
Registration Act, 1908 "2. Definitions -
xxx xxx xxx
(6) "Immovable property" includes
land, buildings, hereditary
allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but Page 16 of 32 not standing timber, growing crops nor grass.
17. Documents of which registration is compulsory (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) xxxx
(b) xxxx
(c) xxxx
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent.
xxx xxx xxx"
OPDR Act, 1962 "2(g) "public demand" means any arrear or money specified in Schedule- I, and includes any interest which may, by law, be chargeable thereon up to the date on which a certificate is signed under Chapter II"
Schedule -I xxx xxx xxx "(iii) Any demand payable to the Collector by a person holding any interest in land, pasturage, forest-
rights, fisheries, ghats, ferries, hats, trees, or the like whether such interest is or is not transferable when such demand is a condition to the use Page 17 of 32 and enjoyment of such land, pasturage, forest-rights, fisheries, ghats, ferries, hats, tress or other things and for which an agreement has been executed by the persons concerned.
(iv) Rents, fees and royalties due to Government for the use or occupation of land or water, whether property of Government or not, or on account of any products thereof and all moneys falling due to Government under any grant, lease or contract which provides that they shall be recoverable as arrears of land revenue."
xxx xxx xxx In respect of which the person liable to pay the same has agreed, by a Written instrument that it shall be recoverable as a public demand.
xxx xxx xxx"
(Emphasis supplied)
27. So far as a registration of lease deeds for lease of fishery sairat, which were entered into between the parties on 17.06.1998, as at Annexure-E/3 series, as is revealed from the said so called lease deeds, admittedly were filled up in the Model Form prescribed for the said purpose in plain papers. The said lease deeds well demonstrate that the bid amount, as bided by the lessee in the public auction held on 17.06.1998 for the Rananadi Fishery Sairat, under Page 18 of 32 the Banki Tahasil, was for the year 1998-99 and such amount was payable by the Petitioner towards "yearly rent".
28. That apart, the notice of the Tahasildar, Dampada (O.P.No.3) dated 26.11.1998, as at Annexure-2, in Sairat Case No.13/98-99 also clearly indicates that the Petitioner was not only noticed to pay rest of the installment amount by 30.11.1998, he was also instructed to execute the lease deed in stamp paper. Admittedly, the documents, which have been annexed to the Counter filed by the State as at Annexure-E/3 series, are not registered lease deeds executed in stamp papers. Rather, the heading of the said so called lease deeds indicates "REVISED MODEL FORM FOR LARGE FISHERY FORM OF LEASE DEED FOR LEASE OF FISHERY". The said Form, though has been filled up and duly signed by the Petitioner at the end of the last stage of the said lease deed, witnessed by one Godabarisha Mohanty, AC, no officer has signed the so called lease deed representing the Lesser- Governor of Odisha.
Page 19 of 32
29. In Ananda Behera (supra), the Supreme Court, while deciding a dispute regarding fishery right in chilika lake held as follows:-
"10.The facts disclosed in Paragraph 3 of the petition make it clear that what was sold was the right to catch and carry away fish in specific sections of the lake over a specified future period. That amounts to a license to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a profit a prendre. In England this is regarded as an interest in land because it is a right to some profit of the soil for the use of the owner of the right. In India it is regarded as a benefit that arises out of the land and as such is immovable property.
11. Section 3 (26) of the General Clauses Act defines "immovable property" as including benefits that arise out of the land. The Transfer of Property Act does not define the term except to say that immovable property does not include standing timber, growing crops or grass. As fish do not come under that category the definition in the General Clauses Act applies and as a profit a prendre is regarded as a benefit arising out of land it follows that it is immovable property within the meaning of the Transfer of Property Act.
12. Now a "sale" is defined as a transfer of ownership in exchange for a price paid or promised. As a profit a prendre Page 20 of 32 is immovable property and as in this case it was purchased for a price that was paid it requires Writing and registration because of section 54 of the Transfer of Property Act. If a profit a prendre is regarded as tangible immovable property, then the "property"
in this case was over Rs. 100 in value.
If it is intangible, then a registered instrument would be necessary whatever the value. The "sales" in this case were oral, there was neither Writing nor registration.
That being the case, the transactions passed no title or interest and accordingly the petitioners have no fundamental right that they can enforce."
(Emphasis Supplied)
30. Similarly, in Sipahi Singh & ors. (supra), the Supreme Court, while deciding an issue regarding the fishery rights in favour of the Respondent No.1 and putting him in possession thereon, referring to the case in Anand Behera (supra), held as follows:-
"11. That apart, there is an additional reason for holding that the settlement of Jalkar with respondent No.1 was not valid and enforceable. The right to catch and carry away the fish being a profit a prendre' i.e. a profit or benefit arising out of the land, it has to be regarded as immovable property within the meaning of the Page 21 of 32 Transfer of Property Act, read in the light of Section 3(26) of the General Clauses Act. If a 'profit a prendre' is tangible immovable property, its sale has to be by means of a registered instrument in case its value exceeds Rs. 100/- because of Section 54 of the Transfer of Property Act. If it is intangible, its sale is required to be effected by a registered instrument whatever its value. Therefore, in either of the two situations, the grant of the 'profit a prendre' has to be by means of a registered instrument. Accordingly, the transaction of sale of the right to catch and carry away the fish if not effected by means of a registered instrument, would pass no title or interest. (See Ananda Behera & Anr. v. The State of Orissa and Anr.. Even if the settlement of Jalkar with respondent No. 1 is regarded as lease as described by him in Annexure-2 to the Writ petition, it would not make any difference because a lease of fishery which is property as defined by Section 2(6) of the Registration Act if it is for any term exceeding one year or reserves a yearly rent has also to be registered as required by Section 17(1)(d) of the Indian Registration Act, 1908 and Section 107 of the Transfer of Property Act. As in the instant case, the transfer of the 'profit a prendre in favour of respondent No. 1 was admittedly for two years reserving a yearly rent and was not evidenced by a registered instrument, he had no right, title or interest which could be enforced by him. Manifestly therefore, the Writ Page 22 of 32 petition was misconceived and ought to have been dismissed."
(Emphasis Supplied)
31. The division Bench of this Court in Aprati Sahu (supra), while dealing with and deciding an issue regarding initiation of proceeding against the Petitioner under the OPDR Act, for recovery of balance auction amount as arrear of land revenue, which issue is almost similar, as of the present case of the Petitioner, held as follows:
"Apart from the other contentions raised by the petitioner, it appears that the proceeding under the Orissa Public Demands Recovery Act, 1962 was stillborn one since the demand against the petitioner is not collectible as arrears of revenue. It is the admitted case of the parties that the petitioner had never executed any registered agreement for the lease even though he had signed only a form of agreement. Neither a full- fledged agreement had come into existence nor was it registered. A right to catch fish is a right to profits a pendre and is unquestionably immoveable property requiring registration for its assignment as has been held by Ananda Behera and another v. State of Orissa and another and The Bihar Eastern Gangetic Fisherman Co-operative Society Ltd., v. Sipahi Singh and others. Under the provisions of paragraph (iii) of the Schedule I to the Page 23 of 32 Orissa Public Demands Recovery Act, the demand arising out of a fishery amongst other things would become a public demand collectible as arrears of land revenue only if it is so stipulated under an agreement executed by the person concerned. An agreement would undoubtedly mean a valid agreement which in this case was to have been a registered one. Since there was no such agreement, the petitioner had never agreed that the demand raised against him was to be collected under the provisions of the Orissa Public Demands Recovery Act, 1962 and hence no such proceeding could be started."
(Emphasis Supplied)
32. Similarly, the coordinate Bench in Sashibhusan Mohapatra (supra), while deciding a similar issue regarding initiation of certificate proceeding for recovery of the balance consideration amount of the lease deed, under the OPDR Act, held as follows:-
8. "xxx The demand sought to be realised from the respondent more properly falls under Clause (iii) of the Schedule I which stipulates that demand there under becomes payable to the Collector only if there is a Written agreement in existence between the parties concerned. Hence, if there is no agreement executed between the State and the person concerned, the Page 24 of 32 demand does not become a public demand. Even if the amount would have been payable under Clause (iv) of the Schedule, yet the demand does not become a public demand since that clause provides that the grant, lease or contract under which money might have fallen due, must provide that the dues shall be recoverable as arrears of land revenue.
9. In this view of the fact, the conclusion is irresistible that since no agreement exists between the parties, the demand was not a public demand and hence the very initiation of the certificate case was thoroughly misconceived and Incompetent. Resort to the provisions of the O.P.D.R. Act is not a normal process of recovery of dues but is an extraordinary one and hence the application of such law must be very strictly construed. The respondent is thus entitled to the declaration that the alleged dues of the Government are not collectible from him by way of a certificate proceeding as also to an injunction restraining the appellant to recover the dues of Rs, 3000/- under the certificate proceeding."
(Emphasis Supplied)
33. From the legal provisions under the Transfer of Property Act, 1882, the Registration Act, 1908 so also the Page 25 of 32 OPDR Act, 1962 and the judgments, as detailed above, this Court is of the following irresistible conclusions:-
i) As defined under Section 2 (6) of the Registration Act, "Immovable property" includes land, buildings, hereditary allowances, rights to ways, lights, ferries, "fisheries" or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass.
ii) As required under Section 107 of the Transfer of Property Act , a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
iii) A right to catch fish is a right to profits a prendre and is an immovable property requiring registration for its assignment.
iv) If the State intends to lease out fishery sairat and lease term exceeds one year or reserves a yearly rent, such lease has to be registered, as required Page 26 of 32 under Section 17 (1)(d) of the Registration Act read with Section 107 of the T.P.Act.
v) Demand by the State for non-payment of bid amount towards lease of fishery sairat falls under definition of "public demand" as defined under Section 2(g), read with Clause (iii) under Schedule-
I of the OPDR Act.
vi) For recovery of unpaid amount under the OPDR Act, there must be a valid lease deed (properly stamped and registered) bearing a clause therein to the effect that dues payable under the lease deed shall be recoverable as "arrears of land revenue", if the lessee fails to act in terms of the lease deed.
(Emphasis supplied)
34. Public Demand, as defined under section 2 (g), read with Clause (iii) in Schedule (I) of the OPDR Act, includes any demand payable to the Collector by a person holding any interest in fisheries towards royalties/fees. Page 27 of 32 Since the bid amount payable by the Petitioner towards fishery sairat sources is towards annual rent for the financial year 1998-99, this Court is of the view that in terms of section 17(1) (d) of the Registration Act, 1908 read with the provisions under 107 of the Transfer of Property Act, 1882, the lease deeds should have been properly stamped and registered.
35. Admittedly, even though the so called lease deeds were executed between the Petitioner and the State Government, but the said lease deeds were neither executed in stamp paper as per the Stamp Act nor registered, as required under the Registration Act. The so called unregistered lease deeds clearly demonstrate that those are mere Model Forms for execution of lease deed for lease of fishery sairat in plain paper, which were filled up bearing signature of the Petitioner only in the last page. Even if the demands made against the Petitioner are Government dues and the recourse available for recovery of the same is by way of initiating a certificate proceeding against the lessee under the OPDR Act, since the so called Page 28 of 32 lease deeds are unstamped and unregistered, thus this Court is of the view that even though the said lease deeds have a clause to the effect that all appears of the premium and other dues payable under the said lease shall be recoverable as arrear of land revenue, in absence of a valid lease deed/ agreement, the very initiation of the certificate proceeding against the Petitioner is bad and liable to be interfered with. Both the points, as detailed above, are answered accordingly.
36. Accordingly, the certificate proceeding initiated against the Petitioner vide Certificate Proceeding No.100/01-02, pending in the Court of Certificate Officer, Damapada (O.P.No.3), is hereby set-aside and quashed.
37. So far as the other two Writ Petitions i.e. W.P.(C) No.20829 of 2014 preferred by Upendra Mallik, and W.P.(C) No.20830 of 2014 preferred by Benga Mallik, with similar stand and prayers, as of the case of the Petitioner in W.P.(C) No.20831 of 2014, it is an admitted fact that in those cases even no lease deed in prescribed form was executed with the Petitioners, as was done in case of Page 29 of 32 Duryodhan Mallik (Writ Petitioner in W.P.(C) No.20831 of 2014).
38. Hence, in absence of any lease deed for lease of fishery sairat and initiation of certificate proceeding against Upendra Mallik and Benga Mallik to recover the unpaid differential bid amount as an arrear of land revenue, by initiating a certificate proceeding under the OPDR Act, are also held to be illegal, unjustified and untenable.
39. Accordingly, the Certificate Case No.102/01-02 initiated against Upendra Mallik (Writ Petitioner in W.P.(C) No.20829 of 2014) so also Certificate Case No.101/01-02, initiated against Benga Mallik (Writ Petitioner in W.P.(C) No.20830 of 2014), both pending in the Court of the Certificate Officer, Dampada, stand quashed.
40. It is made clear that since the certificate proceedings were initiated against the Petitioners for admitted Government dues towards differential unpaid bid amount for fishery sairat and the Writ Petitions have been allowed on technical ground of non execution of valid lease deed/absence of registered lease deed, it would be open for Page 30 of 32 the State authorities to recover the differential unpaid bid amount from the Petitioners through any other mode of recovery, if any, in accordance with law.
41. Admittedly, in all these cases, because of the inaction of the then Tahasildar, Banki to execute proper lease deeds with the Petitioners in stamp paper and getting the same registered in terms of the Registration Act, the Petitioners took advantage of the same and the certificate proceedings initiated against all the Writ Petitioners have been quashed on that score alone.
42. It is, therefore, imperative that the State Government should be more vigilant and should ensure execution of valid lease deeds for leasing out fishery sairat or any kind of lease, involving generation of revenue, by proper documentation, stamping and registration, if so required under law, to check further loss to the State exchequer. The State Government shall also formulate detailed guidelines/advisories to regulate the same and circulate it amongst the concerned departments, fixing responsibility on the officers concerned to adhere to such Page 31 of 32 instructions and on failure to act so, recover the losses caused to the State from the salary of the concerned officer, apart from initiation of departmental proceeding against the errant officer(s).
43. With the said observations and directions, all the Writ Petitions stand allowed and disposed of. No order as to cost.
44. A true copy of this judgment be shared with the learned Advocate General for onward transmission to the Secretary, Board of Revenue, Odisha and other Departments of the State Government to consider the observations made above regarding formulation of guidelines and its implementation at the earliest.
...............................
S.K. MISHRA, J.
Orissa High Court, Cuttack.
Dated, 19th September, 2024 / Banita Signature Not Verified Digitally Signed Signed by: BANITA PRIYADARSHINI PALEI Designation: SR. STENOGRAPHER Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Sep-2024 14:59:32 Page 32 of 32