JAGDISH RAI PURI Vs. EPARI BHASKAR PATRA

JUDGEMENT

(1.) THE petitioner has filed the present Writ Petition challenging the Order dated 23.5.2003 of the Government of Orissa in General Administration Department, wherein permission was refused for the second time for transfer of the lease hold property by Sri Epari Bhaskar Patra Opp. Party No. 1 to the petitioner.

(2.) THE facts leading the present writ petition can be summarily narrated as follows : Plot No. A/116 measuring 60' x 90' near Governor's house in Unit Ill, Bhubaneswar was leased out by the Government of Orissa to one Col. B. K. Sharma in the year 1967 under lease deed dated 5.7.1967. Col. B. K. Sharma while in possession of the said property transferred the same to Opp. Party No. 1 Epari Bhaskar Patra for a consideration of Rs. 95,000/ on 17.7.1975 after obtaining due permission from the G.A. Department of the Government of Orissa vide order dated 28.5.1975. In the year 1979, Opp. Party No. 1 expressed his desire to transfer the case land to the petitioner and an agreement between Opp. Party No. 1 and the petitioner was executed on 17.2.1979 at Bhubaneswar setting the price of the property at Rs. 1,30,000/ . It was agree that Opp. Party No. 1 would receive a sum of Rs. 11,000/ as advance and would receive the balance consideration of Rs. 1,19,000/ at the time of registration of the document in favour of the petitioner. Pursuant to the said agreement, Opp. Party No. 1 received an advance of Rs. 11,000/ but, thereafter, though the petitioner was always ready and willing to perform his part of the contract, Opp. Party No. 1 avoided to receive the remaining consideration and execute a deed of conveyance. On inquiry, the petitioner learnt that some dues of the LIC was outstanding against Opp. Party No. 1 connecting the case land. The petitioner, therefore, issued a notice asking Opp. Party No. 1 to clear up the dues of the LIC to get permission from the G.A. Department and execute a registered deed of transfer of the case land in his favour or else to pay compensation of Rs. 22,000/ with interest as stipulated in the agreement. Since Opp. Party No. 1 refused to receive the notice and did not take any step for transfer of the case land, the petitioner filed a suit bearing O.S. No. 761/1980 I in the Court of the Learned Subordinate Judge, Bhubaneswar for specific performance of contract. The said suit was, however, dismissed by the Learned Subordinate Judge on 20.10.1984. The petitioner preferred an appeal bearing First Appeal No. 348 of 1984 before this Court, which was dismissed for default on 2.1.1989. Subsequently, the said First Appeal No. 348 of 1984 was restored on 18.4.1991 and was disposed of by order dated 30.8.1994 with a direction to Opp. Party No. 1 to submit an application to the State Government seeking permission for sale of the case land to the petitioner within two months and on obtaining such permission to execute the sale deed within a month of receipt of the permission. It was also observed that if Opp. Party No. 1 failed to apply for permission to the State Government or to execute the sale deed, the Learned Subordinate Judge, Bhubaneswar would take necessary steps in the matter. Alternative relief was also granted by stipulating that if the State Government refused to accord permission for sale, the petitioner would be entitled to receive damages of Rs. 22,000/ with 9% interest as mentioned in the agreement. Since Opp. Party No. 1 did not comply with the direction given in the First Appeal, the decree was put to execution vide Execution Proceeding No. 44 of 1996 in the Court of the Learned Subordinate Judge, Bhubaneswar. The executing Court directed the State Government either to grant or refuse permission for the transfer of the case land in favour of the petitioner within a stipulated period as per the direction of this Court in the First Appeal No. 348 of 1984. The executing Court also observed in the order that in case the State Government refuse to accord permission for sale of the case land to the petitioner, the petitioner would be entitled to receive damages of Rs. 22,000/ with interest at the rate of 9% as stipulated in the agreement. The petitioner filed OJC No. 18734 of 1998 in this Court seeking to quash the order dated 18.11.1998 of the Executing Court which was subsequently converted to Civil Revision No. 476 of 1999. The said Civil Revision was dismissed by this Court on 21.6.2000 against which Special Leave Petition was filed by the petitioner before the Supreme Court. The said Special Leave Petition was dismissed on 28.8.2000. The petitioner then filed one review petition, which was also dismissed on 5.12.2000. In the meantime, the Government of Orissa Opp. Party No. 2 refused permission for transfer of the case land in favour of the petitioner by its order dated 21.12.1998 and accordingly, the executing Court by order dated 21.1.1999 directed pay merit of all damages by Opp. Party No. 1 to the petitioner in accordance with the judgment and decree in F. A. No. 348 of 1984. The petitioner challenged the order of Opp. Party No. 2 dated 21.12.1998 before this Court in OJC No. 10072 of 2000. This Court by order dated 31.7.2002 directed the State Government Opp. Party No. 2 for fresh consideration of the request made by the executing Court regarding grant of permission for sale of the land in question in favour of the petitioner after giving an opportunity of hearing to the parties including the intervenor Opp. Party No. 3. This order was also challenged by the petitioner in the Apex Court vide SLP (Civil) No. 21830 of 2002 but the Supreme Court by order dated 9.12.2002 rejected the said Special Leave Petition giving an observation that the competent authority of the Government shall take a decision regarding grant/refusal of permission within a period of four months from the date of the matter being placed before it. The matter was accordingly taken up by Opp. Party No. 2 for consideration and the parties were noticed. But in the meantime, Opp. Party No. 3 filed a Writ Petition bearing WPC No. 2551 of 2003 in this Court challenging the order of this Court dated 31.7.2002 in OJC No. 10072 of 2000 and an interim stay was granted but subsequently order was passed directing Opp. Party No. 2 to proceed with the matter subject to the result of the Writ Petition. The competent authority of the State Government heard the petitioner and Opp. Party No. 3 (as Opp. Party No. 1 did not appear), perused the relevant papers and passed order dated 23.5.2003 refusing permission for transfer of the case land by Opp. Party No. 1 in favour of the petitioner. The petitioner thereafter has filed the present Writ Petition under Article 226 of the Constitution of India seeking the following reliefs :

(3.) OPP . Party No. 3 in it's counter while denying the claim of the petitioner for transfer of the case land in his favour pleaded that being unaware of the prior purchase agreement between the petitioner and Opp. Party No. 1, it entered into an agreement with Opp. Party No. 1 for purchase of the case land for a sum of Rs. 15 lakhs on 10.1.1991 when no litigation was pending in respect of the case land and by paying an advance of Rs. 14 lakhs out of the consideration amount of Rs. 15 lakhs, it took over possession of the case land. Then, basing on an irrevocable power of attorney granted by Opp. Party No. 1 in favour of Opp. Party No. 3, construction of building worth about Rs. 40 lakhs was undertaken on that land for housing of the high level executives of the company. According to Opp. Party No. 3 the decree in F.A. No. 348 of 1984 and the order of the executing Court clearly postulate that in case of refusal of permission by Opp. Party No. 2 the petitioner would be entitled to compensation of Rs. 22,000/ with 9% interest thereon and so, he has no right to demand quashing of the order dated 23.5.2003 of Opp. Party No. 2 more so, when the said order has been passed after hearing the concerned parties and taking into consideration the relevant documents and circumstances. It is further claimed that the agreement between Opp. Party No. 1 and Opp. Party No. 3 having been executed during the period when no litigation was pending and Opp. Party No. 3 having entered into that agreement being unaware of the earlier agreement, it is protected under the law of equity. Now, in view of the decree of the Civil Judge (Senior Division), Bhubaneswar in Title Suit No. 354 of 1997 directing specific performance of contract by Opp. Party No. 1, the G.A. Department should accord permission for transfer of the case land in favour of Opp. Party No. 3. It has taken a further plea that when the building worth Rs. 40 lakhs has come up on the case land, grant of permission for transfer of the land in favour of the petitioner would entail in illegal enrichment of the petitioner violating the settled norms of equity.