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Sanjubala Mishra & Others v/s State of Odisha & Others

    W.P.(C) No. 1085 of 2021

    Decided On, 19 April 2021

    At, High Court of Orissa


    For the Petitioners: Asok Mohanty assisted by Milan Kanungo, Sr. Advocates. For the Opposite Parties: A.K. Parija, Advocate General.

Judgment Text

1. This matter is taken up by video conferencing mode.

2. A short point is involved in the present petition. The background facts are that the Petitioners are admittedly the legal heirs and successors-in-interest of late Shri Radhanath Acharya, who was a lessee under the General Administration Department (GAD), Government of Odisha with respect to Plot No.301, measuring Ac.0.280 decimals, corresponding to Revenue Plot No.978, under Revenue Khata No.330, under Mouza-Kharavela Nagar.

3. Upon his death an order was issued on 16th September, 2019 by the General Administration and Public Grievance Department, Government of Odisha accepting the status of Petitioners as his legal heirs and mutating the leasehold rights in their favour on the basis of the legal heir certificate issued by the Tahsildar, Bhubaneswar.

4. Prior to this even while Sri Acharya was alive, he had initially gifted the land in question to one of his daughters and the gift deed was registered. Subsequently, his five daughters had apportioned the land between themselves by way of a mutual understanding which was recorded in an agreement dated 17th June 1985. However, one of the daughters passed away on 14th October, 1992 leaving behind four children who have also joined in the present petition. Subsequent thereto, Sri Radhanath Acharya expired on 18th September, 1993 leaving behind his four surviving daughters and his grand children, i.e. the children of the pre-deceased daughter. They are all admittedly the natural legal heirs and successors. It is on that basis that mutation was applied for and granted on 16th September, 2019.

5. Another daughter of late Radhanath Acharya passed away on 31st October, 2019 leaving behind two legal heirs. They have also joined in the present petition.

6. Meanwhile applications for conversion of the land from leasehold to freehold were filed way back in 2004. It is stated that in response to these applications, a letter was received on 30th November, 2006 from the Additional Land Officer seeking the death certificate of one of the pre-deceased daughters.

7. On 25th June, 2020 the General Administration Department permitted the Petitioners to convert the land from leasehold to freehold, however, subject to the condition that they should deposit Rs.2,55,64,420/-, which included (a) conversion fee of Rs.92,96,153/- and (b) consent fee of Rs.1,62,68,267/- .

8. Aggrieved by the said order, the Petitioners first submitted a representation dated 24th July, 2020 in which it was pointed out that the applicants who are the daughters and grandchildren of late Shri Acharya were the natural successors and had inherited the property. They were seeking conversion of the land to freehold in that capacity. It was pointed out that there was no question of charging any consent fee as would be applicable in cases of transfer of leasehold plots by way of sale in the Bhubaneswar Municipal area.

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.

10. This Court heard the submissions of Mr. Asok Mohanty and Mr. Millan Kanungo, learned Senior counsel for the Petitioners, and Mr. Ashok Parija, learned Advocate General for the Opposite Parties.

11. It is obvious that at the time when the consent fee ought to have been charged, i.e. at the time of grant of permission to the original lessee to transfer the land in favour of his daughter by way of a gift deed, it was not so charged for some reason, that is still not explained.

12. The application, made subsequently, seeking mutation of the leasehold land in favour of the legal heirs of late Shri Radhanath Acharya having been allowed by the Opposite Parties by order dated 16th September, 2019 and a consequential order having been passed to the same effect on 6th January, 2020, the Opposite Parties have implicitly accepted the right of the Petitioners to the leasehold property in their capacity as legal heirs and natural successors and not by virtue of the gift deed. Consequently, it appears to the Court that while there was justification in seeking a fee for conversion of the property from leasehold into freehold, there was no justification at this stage on the part of the Opposite Parties to insist the Petitioners to pay the consent fee.

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.

14. Mr. Mohanty states, on instructions, that the payment of aforementioned conversion fee will be made to the Opposite Parties by the Petitioners not later than 24

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th May 2021. In that event, the necessary orders of conversion of the property from leasehold to freehold shall be passed by the Opposite Parties not later than six weeks thereafter. The writ petition is disposed of in the above terms. 15. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.