Orissa High Court
M/S. Acrux Realcon Pvt. Ltd vs Bhubaneswar Development .... Opposite ... on 25 September, 2023
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.16350 of 2016
M/s. Acrux Realcon Pvt. Ltd. .... Petitioner
Mr. Ramakanta Mohanty, Senior Advocate
-Versus-
Bhubaneswar Development .... Opposite Parties
Authority and others
Mr. P.K. Rout, AGA
Mr. Dayananda Mohapatra, Advocate for BDA
Mr. G.M. Rath, Advocate for O.P. Nos.4 to 11
Mr. B. Bhuyan, Advocate for O.P. Nos.5(a),(b)& (c)
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:25.09.2023
1. Instant writ petition is at the behest of the petitioner assailing
the correctness, legality and judicial propriety of the impugned
order dated 24th November, 2015 passed by opposite party No.3
for having cancelled the permission accorded in its favour under
Section 16(3) of the Orissa Development Authorities Act, 1982
(hereinafter referred to as 'the ODA Act') on the grounds inter
alia that the same is in contravention of the direction issued in
W.P.(C) Nos.911 and 1090 of 2011 besides being illegal, perverse
and without jurisdiction.
2. The petitioner is a company incorporated under the Companies
Act and the principal relief is against the Bhubaneswar
Development Authority, a statutory body created under the ODA
Act and in so far as, the facts of the case are concerned, the
following are the chronological events, such as, in 1943, the case
land was leased out by the ex-intermediary before vesting in
favour of the original tenant, who invested labour and money,
W.P.(C) No.16350 of 2016 Page 1 of 11
M/s. Acrux Realcon Pvt. Ltd. Vrs. Bhubaneswar Development Authority and
others
levelled the same and continued with its possession
uninterruptedly, inasmuch as, the vesting took place in the year
1953 and thereafter, the Tahasildar-cum-OEA Collector,
Bhubaneswar, who by an administrative enquiry as contemplated
under the Orissa Estates Abolition Act, 1951 (shortly as 'the OEA
Act') accepted rent from the original tenant and recognized his
stitiban status in terms of Section 8(1) thereof and issued Record
of Right which was accomplished in Misc. Case No.94 of 1981 but
such status was divested and the same was challenged in OJC
No.3768 of 1993 which was disposed of by an order dated 22nd
November, 1993 with the conclusion that the order under Section
8(1) of the OEA Act cannot be construed for having created any
right in favour of the original tenant and hence, it cannot be the
subject matter of revision under Section 38-B thereof and even
thereafter, till the time any such proceeding under Section 5 (i) of
the OEA Act was initiated, since no rent was accepted, once again
the original tenant filed OJC No.12875 of 2001 which was
disposed of on 28th September, 2001 directing the Tahasildar-cum-
OEA Collector, Bhubaneswar to assess the rent in respect of the
case plot measuring an area Ac.0.93 decimals situate in Mouza-
Patia, Bhubaneswar which was then accepted and later on, the
land in question was transferred in favour of the petitioner and
proforma opposite party Nos.4 to 11, who thereafter converted it
to homestead under Section 8-A Orissa Land Reforms Act leading
to issuance of separate RoRs in their favour and in the meanwhile,
proforma opposite party Nos.4 to 11 executed a General Power
of Attorney in favour of the petitioner's company for construction
of flats over the schedule land after permission being obtained
from BDA under Section 16 of the ODA Act and on an application
so moved, necessary clearance from the GA & P.G. Department,
Government of Odisha was sought for which was, however,
refused on the ground that the orders in OJC No.3768 of 1993
W.P.(C) No.16350 of 2016 Page 2 of 11
M/s. Acrux Realcon Pvt. Ltd. Vrs. Bhubaneswar Development Authority and
others
and OJC No.12875 of 2001 and review of the same to be
pending later to which W.P.(C) No.1090 of 2011 was filed
challenging such a decision refusing grant of NoC but then, the
challenge vide Review Petition Case Nos.304 and 308 of 2010
were dismissed as against which SLPs though filed but stood
dismissed on the ground of delay and also on merit with an
observation that the impugned orders shall not create title in
favour of the respondents and if any further litigation is instituted,
the petitioner therein shall be free to defend the same on all legally permissible ground which has allegedly been misconstrued as if the original tenant did not have title and notwithstanding a decision that there is no necessity to procure NoC and consequently, W.P.(C) Nos.911 and 1090 of 2011 were disposed concluding that the BDA cannot have any objection with regard to prima facie title and directed the BDA to grant permission to raise the construction as per the plan submitted by the petitioner which was assailed in SLP (C) Nos.18989 and 18990 of 2014 and pending disposal of the same, permission was accorded for construction of S+4 residential apartment over the case land, but the SLPs were finally dismissed on merit again with a similar observation leaving the State free to defend any such claim as per law, as a result of which, the BDA on 21st October, 2014 initiated a proceeding and issued a show cause notice to revoke the building plan approved earlier, in response to which, reply was submitted on 4th November, 2014 and thereafter, the permission was revoked under Annexure-1 and being aggrieved of, the proforma opposite party Nos.4 to 11 approached the Apex Court in IA No.3-4 of 2015 arising out of SLP (C) Nos.18989 and 18990 of 2014 which was disposed of with the liberty to challenge the decision of the BDA dated 24th November, 2015 and hence, the writ petition on the ground that the decision revoking permission W.P.(C) No.16350 of 2016 Page 3 of 11 M/s. Acrux Realcon Pvt. Ltd. Vrs. Bhubaneswar Development Authority and others granted under Section 16(3) of the ODA Act under Annexure-2 is unsustainable and hence, liable to be interfered with.
3. Heard Mr. Mohanty, learned Senior Advocate appearing for the petitioner, Mr. Mohapatra, learned counsel for opposite party Nos.1 to 3, Mr. Rout, learned AGA for proforma opposite party No.12 and Mr. Rath, learned counsel for opposite party Nos.4 to 11 besides Mr. Bhuyan, learned counsel for opposite party Nos.5(a) to 5(c).
4. Mr. Mohanty, learned Senior Advocate for the petitioner submits that title of the case land stood vested with the original tenant and thereafter, upon the vendees. It is contended that the interest over the lease hold created in favour of the original tenant having been recognized in terms of Section 8(1) of the OEA Act through an administrative action, the BDA having earlier granted the permission, could not have revoked the same. In other words, Mr. Mohanty would submit that the title which stands in favour of the petitioner and proforma opposite party Nos.4 to 11, in absence of any such decision under Section 5(i) of the OEA Act, cannot and could not have been the basis of revocation of permission dated 24th November, 2015 and hence, the impugned order under Annexure-1 is untenable in law.
5. Opposite party Nos.1 to 3 and 12 filed separate counter affidavits. According to proforma opposite party No.12, the approval by the BDA may only be considered after the petitioner and proforma opposite party Nos.4 to 11 establish clear title over the case land and justified denial of NoC vide Annexure-4. As per the pleading of opposite party Nos.1 to 3, on scrutiny of the application for permission, title is examined in the first place with fulfillment of other conditions and in view of the final order in SLP (C) Nos.18989 and 18990 of 2014 with the observation that W.P.(C) No.16350 of 2016 Page 4 of 11 M/s. Acrux Realcon Pvt. Ltd. Vrs. Bhubaneswar Development Authority and others the orders shall not create any title, the permission which was granted earlier was cancelled, a decision which is appealable under the ODA Act. Essentially the denial of the permission by the BDA is on the premise that there is a shadow of doubt on title in favour of the original tenant and thereafter, the petitioner and proforma private opposite parties. An additional affidavit is filed by opposite party Nos.1 to 3 while justifying the revocation under Annexure-1 pleading further that the request for approval was clearly misleading vis-à-vis ownership which could constitute fraud thereby attracting the rigor of law under Section 17 ODA Act. In response to the above, the petitioner filed a rejoinder stating that the statutory conferment of title stands recognized in favour of the original tenant as he was accepted as a tenant under the estate as against background that the ex-intermediary, who was the owner leased it out in his favour, inasmuch as, after vesting, the intermediary interest was statutorily abolished with the occupancy right created by virtue of Section 8(1) of the OEA Act.
6. Mr. Mohapatra, learned counsel for opposite party Nos.1 to 3 submits that a serious doubt looms large with regard to the lease in favour of the original tenant, any such permission in favour of the petitioner for construction of residential flats could invite serious consequences as interest of third parties, such as, the prospective buyers would be created as a result. It is also contended that since the State contemplated and initiated action under Section 5(i) of the OEA Act, any such permission allowed in favour of the petitioner with its revocation is certain to result in further complication.
7. Mr. Rout, learned AGA for the State submits that the issues relating to right, title and interest of the original tenant is subject to the challenge in view of the observation of the Apex Court W.P.(C) No.16350 of 2016 Page 5 of 11 M/s. Acrux Realcon Pvt. Ltd. Vrs. Bhubaneswar Development Authority and others while disposing of the SLPs. It is also pleaded that though the land was settled in favour of the original tenant in OEA Misc. Case No.94 of 1981 but the order of the Tahasildar-cum-OEA Collector was set aside in OEA Revision Case No.17 of 1992 by order dated 16th February, 1993 of the Member, Board of Revenue and in such view of the matter, any such declaration of tenancy right under Section 8(1) of the OEA Act was without jurisdiction as it also failed to verify the Record of Right which revealed that the land to be of Kissam 'Jhati jungle' not leasable by the ex-intermediary in view of Section 3 of the Orissa Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948, inasmuch as, ex- intermediary had no occupancy and transferable right over the case land relating to Plot No.341, Anabadi Khata No.270 situate under Mouza-Patia, Bhubaneswar and furthermore when, it stood vested with the State Government free from all encumbrances by a notification dated 27th November, 1952. Basically the objection of opposite party Nos.1 to 3 and proforma opposite party No.12 is that the creation of the tenancy interest in favour of the vendor of the petitioner and other opposite parties in respect of the case land, since illegal and action under Section 5(i) of the OEA Act has been initiated to set it naught, the decision to revoke the permission granted earlier by the BDA is justified.
8. In course of hearing, it is made to suggest that the proceeding under Section 5(i) of the OEA Act has been initiated. In fact, the proforma opposite party No.12 filed an additional affidavit dated 27th November, 2017 stating therein the facts leading to the initiation of the proceeding under Section 5(i) of the OEA Act. It has been pleaded that the decision of the Tahasildar-cum-OEA Collector under Section 8(1) has been challenged in OEA Case No.1 of 2017, so therefore, the tenancy right of the petitioner's vendor is being questioned. It is also pleaded that the rent having W.P.(C) No.16350 of 2016 Page 6 of 11 M/s. Acrux Realcon Pvt. Ltd. Vrs. Bhubaneswar Development Authority and others been accepted from the original tenant cannot confirm the tenancy right in view of the decision of the Apex Court in State of Orissa and others Vrs, Brundaban Sharma and Another 1995 (Supp.)(3) SCC 249, wherein, it has been clarified that collection of land revenue or rent in regular course of duty does not recognize any such pre-existing right, title and interest over a land. According to the State, the so called 'Hat patta' of the ex- intermediary in favour of the original tenant and other documents, like rent receipts are clear manifestation of fraud and therefore, cannot convey any manner of title to the vendor of the petitioner and since the fraud was unearthed even after a lapse of considerable time, it requires enquiry and hence, proceeding under Section 5(i) of the OEA Act has been initiated. So to say, the genuineness of the 'Hat patta' is disputed which according to the State never saw the light of the day and that apart, any such lease by the ex-intermediary has had no sanction of law and irrespective of an order under Section 8(1) of the OEA Act, as the same is under challenge in OEA Case No.1 of 2017, till such time, a decision rendered therein as to the validity of the tenancy right, the decision under Annexure-4 is the right approach.
9. Nowhere, title of the petitioner and proforma opposite party Nos.4 to 11 was ever disturbed but it was left open for the State to challenge the same in view of the observation of the Apex Court while disposing the SLPs. According to proforma opposite party No.12, the interest of the State is involved as the creation of tenancy right on the strength of a 'Hat patta' purportedly executed by the ex-intermediary is in serious doubt. As earlier stated, later to the observation by the Apex Court at the time of disposal of the SLPs, the proceeding in OEA Case No.1 of 2017 under Section 5(i) of the OEA Act was initiated. The tenancy right of the vendor of the petitioner now stands questioned on various W.P.(C) No.16350 of 2016 Page 7 of 11 M/s. Acrux Realcon Pvt. Ltd. Vrs. Bhubaneswar Development Authority and others grounds as it is made to appear from Annexure-B/12 to the additional affidavit dated 27th November, 2017 of proforma opposite party No.12. In fact, the order of the Tahasildar-cum- OEA Collector under Section 8(1) of the OEA Act was challenged before the Board of Revenue under Section 38-B of the OEA Act and the same was set aside with the conclusion that the confirmation of rayati right shall await the outcome of the enquiry under Section 5(i) of the OEA Act and recommendation of the OEA Collector for confirmation of the lease. The decision under Section 5(i) of the OEA Act is still awaited in OEA Case No.1 of 2017. Therefore, the question is, whether, permission under Section 16(1) of the ODA Act so revoked in the meantime may be restored or can be accorded by the BDA pending enquiry under Section 5(i) of the OEA Act. A serious apprehension is expressed by Mr. Mohapatra, learned counsel for opposite party Nos.1 to 3 in case Annexure-1 is interfered with as the matter under enquiry is subjudice.
10. Section 5 of the OEA Act deals with consequences of vesting of an estate and therein by virtue of Clause (i), the Collector has the authority to set aside any such settlement, lease or transfer and then to take possession of the property in the manner provided in Clause (h) thereof on such terms as may appear to him to be fair and equitable when such interest is created at any time after 1st January, 1946. In fact, Section 5(i) of the OEA Act contemplates an enquiry especially with regard to such settlement, lease or transfer made or created after 1st January, 1946 to find out and ascertain whether it was with the intent and object to defeat any of the provisions of the said Act and to take necessary action and if necessary, to set aside the same after providing reasonable notice to the parties concerned and also to divest the person claiming under it and take possession of the W.P.(C) No.16350 of 2016 Page 8 of 11 M/s. Acrux Realcon Pvt. Ltd. Vrs. Bhubaneswar Development Authority and others property according to law. In so far as, the original tenant is concerned, the tenancy interest is claimed on the basis of a 'Hat patta' executed by the ex-intermediary which is also challenged on the ground that the later had no occupancy and transferable right over the same since it was recorded as 'Jhati jungle' in the Record of Right of 1931. Apparently, a lease created after 1st January, 1946 claiming to be on the strength of a 'Hat patta' executed in favour of the original tenant, which at present, as the State alleges to be an act of fraud, is under question in OEA Case No.1 of 2017. It is well settled that Section 8 of the OEA Act is about continuity of tenure of tenant, who was in possession of any holding as a tenant under ex-intermediary immediately before the date of vesting of an estate in the State Government. Such tenant is considered as a tenant under the State Government. In other words, a tenant under the ex-intermediary is deemed to be a tenant under the State by virtue of Section 8(1) of the OEA Act and he shall hold the land with the same rights and restrictions with the liabilities as he was entitled or subject to immediately before such vesting. It is also a settled law that Section 8(1) of the OEA Act does not contemplate any initiation of proceeding by the OEA authority. Rather, the tenancy right is confirmed through an administrative decision. The challenge of the State is that the Tahasildar-cum-OEA Collector in OEA Misc. Case No.94 of 1981 without following due procedure of law verifying the vesting records disposed of the proceeding on 30th June, 1981 and accepted the lessee as a tenant under the State Government when he was never inducted as a tenant by the ex- intermediary before the date of vesting, inasmuch as, no rent roll or 'Ekpadia' was prepared and submitted by the ex-intermediary, rather, he managed to record the case land illegally. In view of the above, when the order dated 30th June, 1981 was set aside in OEA Revision Case No.17 of 1992 and in so far as the enquiry W.P.(C) No.16350 of 2016 Page 9 of 11 M/s. Acrux Realcon Pvt. Ltd. Vrs. Bhubaneswar Development Authority and others under Section 5(i) of the OEA Act is concerned, the same is pending disposal in OEA Case No.1 of 2017, whether, it would be just and proper to direct opposite party Nos.1 to 3 to grant the permission in favour of the petitioner under Section 16(1) of the ODA Act after setting aside revocation. Awaiting decision in OEA Case No.1 of 2017 under Section 5(i) of the OEA Act, in the considered view of the Court, it would not be appropriate to tinker with the revocation even though technically speaking the title still stands good. As it has been rightly pointed out by Mr. Mohapatra, learned counsel for opposite party Nos.1 to 3, any such permission under Section 16(1) of the ODA Act with the revocation annulled on the anvil of enquiry under Section 5(i) of the OEA Act, result of which is still to arrive, is certain to invite serious complication as thereby interest of third parties would be created with the construction of the residential flats. If ultimately, on enquiry, no recommendation is made, rather, it is held that the case land vested with the State Government free from all encumbrances, with any such decision knocking down the alleged lease, status quo ante could be restored but at huge expense. At the same time, the Court is of the considered view that the enquiry pending in OEA Case No.1 of 2017 is required to be concluded at the earliest so that the decision by the BDA on permission under Section 16(1) of the ODA Act may be reconsidered and not held up for long. The enquiry under Section 5(i) of the OEA Act since pending from 2017, it should be accomplished without further delay as substantial interest of the petitioner and private opposite parties to be involved. Nonetheless, till such time, the permission under Section 16(1) of the ODA Act by the BDA cannot be considered as the apprehension expressed against revoking the decision under Annexure-1 is not entirely misplaced.
W.P.(C) No.16350 of 2016 Page 10 of 11M/s. Acrux Realcon Pvt. Ltd. Vrs. Bhubaneswar Development Authority and others
11. Accordingly, it is ordered.
12. In the result, the writ petition stands disposed with the direction that the proceeding in OEA Case No.1 of 2017 to be disposed of at the earliest preferably within three months from the date of receipt of a copy of this judgment and in case, the same is not accomplished within the above stipulated period, opposite party No.3 shall be at liberty to revisit the decision under Annexure-1.
(R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 29-Sep-2023 12:24:46 W.P.(C) No.16350 of 2016 Page 11 of 11