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2019 DIGILAW 4 (ORI)

Supriyo Bose v. State Of Odisha

2019-01-03

S.K.SAHOO, S.PANDA

body2019
JUDGMENT S. Panda, J. - Heard Mr. Asim Amitav Das, learned counsel for the petitioners and Mr. Kishore Kumar Mishra, learned Addl. Government Advocate for the opposite parties. 2. The petitioners in this writ petition have challenged the order dated 02.03.2013 passed by the opposite party No.2-Revenue Divisional Commissioner, Central Division, Odisha, Cuttack in OGLS Appeal No.03 of 2012 under Annexure-19 in setting aside the order dated 03.08.2011 of the Collector, Puri passed in Balukhand Permanent Lease (BLP) Case No.47 of 1997, inter alia, with other reliefs. 3. It is the case of the petitioners that Late Janaki Nath Bose, the predecessor-in-interest of the petitioners had acquired a leasehold khasmahal land situated at Gopal Ballav Road, Puri in the year 1916 and subsequently built a two storied house thereon for the purpose of holiday-cum-pilgrimage resort. The original lease holder died in the year 1934. The lease was for a period of thirty years. However, a renewal was made on 16.10.1951 executed by the Collector, Puri on behalf of the Governor of Odisha as a lessor of the one part and the then successors-in-interest of the original lessee as the other part. A copy of such lease deed has been annexed as Annexure-1 to the Writ Petition. The renewal was also made for a period of thirty years commencing from 9th day of May 1946 subject to terms and conditions fixing the rent. Clauses 14 and 15 of the lease deed which are relevant are extracted below:- "14. That the lessees shall not use or let any main or residential building or out house within their holding or portion thereof as hotel, lodging, or boarding house or for purposes of trade without the previous written consent of the Collector: provided that nothing in this clause shall be held to prohibit the bonafide entertainment of friends, or relatives without consideration. 15. 15. That on breach or non-observance of any of the aforesaid terms or conditions, the Collector may declare that the lease has determined and become void, that an order of the Collector declaring that there has been such breach or non-observance shall be final and conclusive proof of such breach or non-observance as between the parties hereto and that on the expiry of one month from the date of such order the Collector or any officer or person appointed in that behalf by the Collector shall be entitled to take possession of the land leased and the buildings erected thereon. Provided that the Collector shall at the time of such declaration, either offer to pay reasonable compensation for the structures and other improvements made with the consent of the Collector or direct the lessees to remove the structures or other improvement within a specified time and if the lessees fail to remove them accordingly, the Collector shall cause such removal to be effected and recover the cost from the lessees. Where compensation is offered, the amount of such compensation shall be fixed by the Collector whose decision shall be final, conclusive and binding on the lessees, subject to revision by the Revenue Commissioner." 4. A further condition was stipulated in the lease deed that the lease can be renewed for a further period of thirty years subject to such modification of terms and conditions by the Collector and in case the lessees decline to accept such renewal, the Collector shall either offer to pay reasonable compensation for the structures and other improvements made with the consent of the Collector or direct the lessees to remove the same within a specified time and if the lessee fails to remove the same, the Collector shall cause such removal to be effected and recover the cost from the lessee. Where compensation is offered, the amount of such compensation shall be fixed by the Collector whose decision shall be final, conclusive and binding on the lessee, subject to revision by the Revenue Commissioner. 5. On such expiry of the lease period, another renewal was made in the year 1982 between the same parties, which commenced from 9th day of May, 1976 for a further period of thirty years fixing the rent with terms and conditions of the lease. 6. 5. On such expiry of the lease period, another renewal was made in the year 1982 between the same parties, which commenced from 9th day of May, 1976 for a further period of thirty years fixing the rent with terms and conditions of the lease. 6. In view of such renewal, which was made in the year 1982 and the terms of the lease being thirty years commencing from 9th day of May, 1976, an application was filed by the petitioners to mutate their names and accept the rent before the opposite party No.4, Tahasildar, Puri which was registered as BPL Case No.47 of 1997. On such application, the Collector-opposite party No.3 has passed an order dated 03.08.2011 to the following effect:- "Perused the orders and recommendations of Tahasildar, Puri and Sub-Collector, Puri. This is regarding approval of Khasmahal lease hold land for settlement in favour of the lessees i.e. Suresh Chandra Bose and Others (as per hal settlement R.O.R of 1987) on Raiyati basis on payment of salami and rent as assessed by the Tahasildar, Puri as per Sub-Rule 5(c) of Rule 5-B of Schedule-V of O.G.L.S (Amendment) Rules 2010". 7. Accordingly, the Collector approved the settlement in favour of the lessees subject to payment of salami and rent as assessed by the Tahasildar, Puri. 8. However, the opposite party no.4, Tahasildar, Puri instead of carrying out the said order of the Collector, Puri, vide its order dated 12.08.2011 directed the Revenue Inspector, Balukhand to record the land in the names of Suresh Chandra Bose, Sailesh Chandra Bose, Subash Chandra Bose, Lalita Bose, Manjula Nag, Dwijendranath Bose, Ashok Nath Bose etc. and also fixed the rent upto 2012 and salami. 9. Mr. Das, learned counsel for the petitioners contended that the persons, who have not filed applications for mutation, their names have been reflected by the opposite party No.4 in its order dated 12.08.2011 directing the Revenue Inspector to reflect those names and in the said order, it was indicated that as per the orders of the Collector, Puri, the names are to be reflected as recorded tenants. The petitioners challenged the order dated 03.08.2011 passed by the Collector, Puri, opposite party No.3 before the Revenue Divisional Commissioner, Central Range, Cuttack, opposite party No.2 in OGLS Appeal No.03 of 2012.It is further contended that the opposite party No.2 passed the impugned order as if he has to decide who are the legal heirs of the original lessee though he no jurisdiction to adjudicate the said dispute and therefore, the orders passed by the opposite parties Nos.2 and 3 need be quashed. 10. Mr. Mishra, learned Addl. Government Advocate however submitted that after the impugned order was passed by opposite party No.2, the building was handed over to the Culture Department through the District Culture Officer and the renovation was made for conservation, reservation and preservation of the building to open a museum in the name of "Netaji Museum" in the memory of Netaji Subash Chandra Bose. 11. While the matter stood thus, an order of status quo was passed by this Court on 24.06.2014. 12. We have gone through the lease deeds, copies of which have been annexed to the writ petition and carefully considered the submission made by the respective parties. It is not in dispute that the terms and conditions incorporated in the lease deed govern the lease. Admittedly, the last renewal of lease was made in the year 1982 commencing from 9 th day of May, 1976 for a period of thirty years. In the meantime thirty years have already elapsed since 2006 and no application for renewal of such lease has been filed before the competent authority. However, in an application filed for mutation of the recorded tenants, orders were passed by the opposite parties Nos. 2 and 3 on an erroneous impression as if an application for lease/renewal of lease was filed under the OGLS Act and Rules. 13. In view of the above facts and circumstances of the case, since the authorities have no jurisdiction under the mutation manual to adjudicate who are the legal heirs of the original lessee, the contentions raised by the learned counsel for the petitioners to carry out the opposite party No.4's direction to reflect the names of some persons as recorded tenants, is not sustainable. Similarly the order passed by the opposite party no.3 directing payment of salami and rent and to settle the land in favour of the lessees without any application for renewal of lease is also not sustainable. The opposite party no.2 also seems to have gone beyond the scope of the appeal filed by the appellants while passing the impugned order. Law is well settled that the records of rights neither create nor extinguish any right, title or interest of the parties whose names are recorded therein. We are of the view that the order dated 03.08.2011 passed by the opposite party No.3-Collector, Puri in BPL Case No.47 of 1997 and the order dated 02.03.2013 passed by opposite party No.2-Revenue Divisional Commissioner, Central Division, Odisha, Cuttack in OGLS Appeal Case No.03 of 2012 are not sustainable in the eye of law and accordingly, such orders are hereby set aside. 14. It is open to the parties to take recourse to law to establish, if they have any right exists in accordance with the statutory provisions. The interim order of status quo dated 24.06.2014 stands vacated. The Writ Petition is disposed of accordingly.