ACRUX REALCON PVT. LTD. Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner Pabitra Mohan Samal in W.P.(C) No.5634 of 2019 has also challenged the self-same order which the petitioner-company in W.P.(C) No.20269 of 2017 has challenged, inter alia, the orders dated 08.11.2017 passed in Lease Revision Case Nos.02 of 2015 to 13 of 2015 by the Additional District Magistrate, Bhubaneswar in cancelling the lease in respect of the different plots of land situate in Mouza Gothapatna in exercise of power conferred under section 7-A(3) of the O.G.L.S. Act.

(2.) The case of the petitioner-company in W.P.(C) No.20269 of 2017 is that it is a private limited company under the provisions of the Companies Act, 1956 having its registered office at Patia, Bhubaneswar which is engaged in the business of construction and real estate development activities. In the daily newspaper 'Sambad' dated 12.06.2015, a public notice was published inviting public objection by 25.07.2015 against the decision to transfer the lands mentioned in the said notification to the Government Khata which was issued by the Additional District Magistrate, Bhubaneswar (opposite party no.3). Pursuant to such notice, the petitioner-company made inspection as one of the items of landed properties mentioned in the aforesaid public notice belonged to it. After inspection, the petitioner- company procured certified copies of the documents from which it came to light that the Additional District Magistrate, Bhubaneswar had initiated a proceeding under section 7-A(3) of the O.G.L.S. Act asking for show cause as to why the lease in respect different plots of land in Mouza Gothapatna should not be cancelled for alleged violation of conditions and to be more specific for allegedly transferring the leasehold property to others. It is the specific case of the petitioner-company that one Netrananda Dehury applied for lease of Government land measuring an area Ac.1.00 decimal on 05.06.1973 and accordingly, a lease case vide W.L. Case No.124 of 1973 was instituted and the concerned R.I. was directed to submit the enquiry report along with the sketch map. Pursuant to the direction of the Tahasildar, the R.I. caused an enquiry and submitted the report stating therein that the applicant was a landless Adibasi and that he might be granted lease for an acre of land specifically mentioning the Khata, Plot, Kissam etc. Thereafter, the Tahasildar issued a public notice inviting objection from the local public. On 25.07.1973, lease was lawfully sanctioned vide W.L. Case No.124 of 1973 by following the due process of law, whereafter the said Netrananda Dehury became the lawful and absolute owner in possession of such lease property without any hindrance from any quarters. On 26.05.1988, permission of Revenue Officer in Rev. Misc. Case No.32 of 1998 in D.R. No.610 was granted to the aforesaid Netrananda Dehury under section 22(1)(b) and (4) of the Odisha Land Reforms Act, 1960 (hereafter 'O.L.R. Act') for transfer of the leasehold land. On 06.06.1988, Netrananda Dehury after obtaining valid permission from the Revenue authorities, in order to meet his urgent requirements sold away Ac.0.765 decimals of the leasehold land by way of registered sale deed no.5317 dated 06.06.1988 in favour of one Sri Aruna Mohanty who then possessed the property lawfully as the absolute owner. On 29.01.1996, this Court in O.J.C. No.9449 of 1993 passed an omnibus direction to the State Government regarding enquiry into the matter relating to lease of lands in Bhubaneswar. On 15.10.1998, this Court gave further direction in the said case to the Government to examine whether the cases are covered under section 3-B of the O.G.L.S. Act and to proceed in accordance with the said provision by following due procedure. On 17.12.1999, the Additional District Magistrate, Bhubaneswar after examining the entire case records of W.L. Case No.124 of 1973 directed the Additional Tahasildar, Bhubaneswar (opposite party no.4) vide his letter No.9905 for disposal on assessment on its own merit and in accordance with section 3-B of the O.G.L.S. Act in compliance of the order of this Court. On 19.09.2001, the aforesaid Aruna Mohanty sold away different portions of the purchased land in favour of different persons like Manjulata Jena vide registered sale deed no.4969 for an area of Ac.0.195 decimals, Sanjukta Padhiary vide registered sale deed no.4970 for an area of Ac.0.195 decimals, Gangadhar Swain vide registered sale deed no.4971 for an area of Ac.0.130 decimals, Samarendra Nayak vide registered sale deed no.4972 for an area of Ac.0.065 decimals and also in favour of Ranu Biswal vide registered sale deed no.4973 for an area of Ac.0.065 decimals. On 22.06.2002, the Additional Tahasildar, Bhubaneswar initiated a case for resumption of the aforesaid lands which were leased out in favour of Netrananda Dehury in W.L. Case No.124 of 1973 in exercise of powers under section 3-B of the O.G.L.S. Act in terms of the direction of the Additional District Magistrate, Bhubaneswar as per order dated 17.12.1999. On 25.06.2002, notices were issued inviting objections, if any, along with paper publications by the Additional Tahasildar, Bhubaneswar in the said resumption case. On 06.09.2002, the Additional Tahasildar, Bhubaneswar also published Ishtahara in the said case. On 06.10.2002, lease resumption proceeding was dropped after following due process of law by the Additional Tahasildar, Bhubaneswar. On 21.04.2011, i.e. after about a decade of the aforesaid statutory exercise in re-examining the lease in favour of Netrananda Dehury in pursuance to the direction of this Court in O.J.C. No.9449 of 1993 and after statutorily adjudicating the same to be lawful and non-resumable as contemplated under section 3-B of the O.G.L.S. Act, transfers were effected in respect of the leasehold property by the aforesaid purchasers of Aruna Mohanty in favour of the petitioner-company. All the aforesaid transfers before the dropping of the proceeding under section 3-B of the O.G.L.S. Act and the subsequent transfers by the earlier transferees became valid under the law in terms of section 43 of the Transfer of Property Act. The petitioner- company then applied for conversion of the purchased lands from agricultural to homestead under section 8-A of the O.L.R. Act. The Tahasildar after accepting the requisite fees directed for conversion and intimated the same to the Settlement Authority as settlement operation had already begun. Thereafter the petitioner-company applied for mutation before the concerned Asst. Settlement Officer (opposite party no.5) as the Tahasildar, Bhubaneswar had no power of mutation during settlement operation. The Asst. Settlement Officer on receipt of the aforesaid motion for mutation initiated Objection Case Nos.3173 of 2012, 3176 of 2012, 3178 of 2012, 3174 of 2012 and 3177 of 2012 in respect of respective purchases of the petitioner- company and dropped the proceeding solely on the ground that the property has already been recorded in the Government Khata. Accordingly, the petitioner filed W.P.(C) No.22095 of 2014, W.P.(C) No.22096 of 2014, W.P.(C) No.22097 of 2014, W.P.(C) No.22098 of 2014 and W.P.(C) No.22099 of 2014 challenging the aforesaid undated order passed by the Asst. Settlement Officer in each case. This Court by its order dated 05.05.2016 taking cognizance of the glaring illegality quashed the aforesaid order of the Asst. Settlement Officer. On 11.08.2014, this Court in the case of Hadu Paltasingh Vs. State of Orissa in W.P.(C) No.12641 of 2012 observed that several other cases of fraud were committed in the grant of leases which came to light for which the Collector, Khurdha was directed to conduct a review in respect of any fraud in the grant of leases and the Additional District Magistrate, Bhubaneswar initiated the impugned proceeding under section 7-A(3) of the O.G.L.S. Act. The initiating authority initiated the impugned proceeding during subsistence of the order for maintenance of status quo passed by this Court in the aforesaid writ petitions. The petitioner-company filed W.P.(C) No.6905 of 2016 challenging the very initiation of the impugned proceeding and this Court remitted the matter back to the Additional District Magistrate, Bhubaneswar to adjudicate the matter afresh. Thereafter, the Additional District Magistrate, Bhubaneswar noticed the petitioner-company and after appearance, the petitioner-company urged that the records which were not produced before this Court should be made available for proper adjudication. The Additional District Magistrate, Bhubaneswar asked the Tahasildar, Bhubaneswar to produce the records who replied that the records were not traceable. Accordingly, the Additional District Magistrate, Bhubaneswar disposed of Lease Revision Case No.01 of 2015 vide impugned order dated 07.07.2017 under Annexure-1 in allowing the revision case and rejecting the objection of the petitioner-company relating to the maintainability of the proceeding and also cancelling the lease of the case land in favour of the lessee.

(3.) The case of the petitioner Pabitra Mohan Samal in W.P.(C) No.5634 of 2019 is that in pursuance to an advertisement issued by the petitioner-company, the petitioner not only verified the title of the land in question but also other certificates granted by different statutory authorities for construction of a residential project called Acropolies which is a multi-storied apartment located in village Gothapatana under Bhubaneswar Tahasil in the district of Khurda and having been fully satisfied about validity of the title and technical feasibility of the said apartment, applied for allotment of a 3 BHK flat and paid necessary security money and also paid the entire money phase wise and after payment of the dues, the petitioner- company executed the sale deed on 30th November 2012 in favour of the petitioner and accordingly possession of Flat No.H- 112 of area 1414 sq. ft. in the 1st floor was handed over to the petitioner way back on 22.03.2014 and the petitioner came to possess the said building and residing there since 2014. The petitioner came to know that the Additional District Magistrate, Bhubaneswar in exercise of the power conferred under section 7- A(3) of the O.G.L.S. Act has settled the land over which the building was constructed in favour of the Government in Lease Revision Case Nos.1 to 13 of 2015 without hearing the petitioner who was a necessary party to such cases. By the order of the Additional District Magistrate, the right of the petitioner over the said land was taken away behind his back by cancelling the lease and returning it to the Government khata. It is the further case of the petitioner that the petitioner was a bonafide allottee and without impleading him as a party, the Additional District Magistrate has passed the impugned orders and due to passing of such orders, the petitioner would be deprived of getting the title over the flat in question, irrespective of execution of sale deed in his favour even after making payment of entire money to the builders. It is the case of the petitioner that being an affected person pursuant to the orders passed by the Additional District Magistrate in different lease revision cases, he was a necessary party to all the revision cases but without impleading him as party, the impugned orders have been passed and thereby the right of the petitioner has been taken away in his absence which amounts to violation of principle of natural justice for which the impugned orders are liable to be set aside. It is the further case of the petitioner that the lease was granted in favour of the original lessee strictly on the basis of the O.G.L.S. Act and Rules framed thereunder and there is no infirmity in the order of the O.E.A. Collector in granting lease in favour of the original lessee and there is inordinate delay in initiating the proceeding under section 7-A(3) of the O.G.L.S. Act by the Additional District Magistrate and in view of the statutory bar coupled with 3rd party right, the impugned orders are also unwarranted in the eye of law.