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Judgment
Arindam Sinha, J.
Mr. Bhuyan, learned advocate appears on behalf of petitioner and submits, his client is a widow. Originally there was lease granted in respect of the land, under Odisha State Urban Land Settlement Rules, 1959. The lessee obtained permission to mortgage the land to Odisha State Financial Corporation (OSFC). The lessee could not repay the mortgage debt. There was foreclosure and transfer of the lease hold right to husband of his client.
There stands a dilapidated structure on the land, which was a hotel made by original lessee. His client being unable to repair the structure, had by representation dated 8th February, 2021 sought permission to transfer the lease hold right. Impugned order dated 28th June, 2022 was made by Additional District Magistrate threatening resumption unless the lease land is made suitable for house site within three months from date of receipt of it. He submits further, the resumption has been threatened under clause (a) in sub-section (1) of section 3 in Odisha Government Land Settlement Act, 1962. The provision is inapplicable to the lease.
On query from Court he submits, the lease was by indenture dated 20th February, 1984, in supersession of lease dated 28th May, 1983. Condition nos. 4, 5 and 6, referred in impugned order, appear therein. He reiterates, the lease was issued under Odisha State Urban Land Settlement Rules, 1959. Impugned order was issued purporting invoking clause-(a) in sub-section (1) of section 3 of the Act, 1962 has no application. Impugned order be set aside on that ground alone. He submits further, on merits too, impugned order should be set aside and quashed.
Mr. Rout, learned advocate, Additional Standing Counsel appears on behalf of State and draws attention to paragraph-15 in the counter. The paragraph is reproduced below.
“15. That this deponent respectfully submits that in view of the violation of condition Nos. 4 & 5 of the lease deed under Annexure-3, the lessee has been authorized under condition No.6 of the agreement to determine the lease. The Collector is not bound to grant permission. On the contrary the petitioner has not utilized the leasehold land for the purpose the same was leased out. As such it was within the competency of the Collector to take resort to the provisions of the Section -3B of the Act, 1962. Be that as it may, while refusing to accede to the request of the petitioner for transfer, the petitioner was also given a reasonable opportunity to take the land habitable and suitable for house site. Therefore, the petitioner was at liberty to make the land suitable for house site and in such an eventuality, there would be no occasion to resort to resumption proposal as visualized U/s.3B of the Act, 1962. In such view of the matter, it is respectfully submitted that there is no illegality or irregularity on the part of the Collector while passing the impugned order under Annexure-17. The Collector while passing the impugned order has taken into consideration the representation of the petitioner under Annexure-13.”
Mr. Routray, learned advocate appears on behalf of opposite party nos. 5 and 6.
We reproduce below paragraphs-2 and 3 from impugned order.
“In view of the above state of affairs, it is found that you have rendered the lease land under Holding No.205/1124 corresponding to Sabik Holding No.246/1 and Plot No.423/568/2717 corresponding to Sabik Plot No.4618 measuring an area of Ac.0.11 decimals in Unit No.XII Station Bandhasahi of Baripada Municipality unfit for being used as house site. You have also not utilized the lease hold land for the purpose the land was leased out. Hence, you have violated the condition No.4 as well as condition No.5 of the lease agreement dated 20.02.1984. Therefore, the leased land is liable for resumption as per the condition No.6 of lease deed for violation of condition No. 4 and 5.
Under such circumstances Collector and District Magistrate, Mayurbhanj has been pleased to reject your prayer for transfer of instant leased land, as a result you are directed to make the lease land suitable for house site within three months from the date of receipt of this latter failing which the leased land will be resumed under sub-section (a) of section 3B of OGLS Act, 1962 as per the condition No.6 of lease deed dated 20.02.1984.”
(emphasis supplied)
It appears petitioner was noticed by impugned order, to have violated condition nos. 4 and 5, for there to be resumption, claimed under condition no.6 in the lease.
Condition nos. 4, 5 and 6 in the lease are reproduced below.
“4. The lessee shall construct a House or other building of such description and dimensions as may be approved by the Collector within a period of three years from the date of his lease.
That the lease shall not commit any act of waste on his holding so as to render it unfit for the purpose of being used as a house site.
That if house or building is constructed according to the material particulars approved by the Collector as provided for in condition No.4 above or the lease contravenes condition No.5 above the lease shall stand determined and the Collector shall have the right to re-enter immediately on the lands on behalf of the lessor and take possession of the site. ”
(emphasis supplied)
There is no dispute that the assignee of petitioner had constructed other building. Petitioner’s case is that it is in dilapidated condition. There is no allegation in impugned notice that the building was in violation of condition 4. In the circumstances, compliance condition 4 obviates necessity of application of condition 5 and hence, condition
As such, it is not necessary for us to adjudicate whether provision under the Act of 1962 was correctly or incorrectly invoked, except that condition 6 provided for, inter alia, re-entry.
Impugned order is set aside and quashed. The Additional District Magistrate will reconsider petitioner’s application for transfer. Mr. Bhuyan points out, in the lease granted to his client, there is condition for transfer.
Result of the consideration be made known to petitioner within four weeks of communication.
The writ petition is allowed and disposed of.
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