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2021 DIGILAW 80 (ORI)

Swarnalata Mohanty v. State Of Odisha

2021-02-24

C.R.DASH

body2021
JUDGMENT Due to pandemic situation for COVID-19, this case is taken up through Hybrid Mode (Video Conferencing as well as Physical Mode). 1. Heard Mr. Manoj Kumar Mohanty, learned counsel appearing for the Petitioner and Mr. Dayananda Mohapatra, learned Counsel appearing for the C.D.A. 2. The Petitioner is stated to be suffering from cancer. She wants to transfer her plot inherited from her father being the sole successor, i.e. Plot No.13-3E/1028 in Sector-13, Markat Nagar, in Bidanasi Project Area. The said plot was allotted in favour of the father of the Petitioner, vide Allotment Order No.3838 dated 17.02.2007. Petitioner's father expired on 23.01.2011 after the aforesaid Plot was allotted in his favour in accordance with law, to which C.D.A. has no objection or dispute. 3. In the year 2001, Petitioner's husband had purchased a Plot bearing No. D/200 in Sector-6 of Markat Nagar in Bidanasi Project Area. So, the husband and wife duos have two plots now in Markat Nagar, Bidanasi Project Area, one each in the name of each spouse. Petitioner's husband is a 3rd Party Purchaser of one plot and the Petitioner is the sole successor in respect of another plot, as discussed supra. 4. The Petitioner herself in the meantime suffered from cancer, and supporting document regarding her medical treatment is annexed with the Writ Petition as Annexure-7 series. It is submitted by learned counsel for the Petitioner that, as huge amount is required for medical treatment of the Petitioner, she wants to sell the aforesaid Plot inherited from her father, i.e. Plot No.13-3E/1028 in Sector-13 of the Bidanasi Project Area, C.D.A., Cuttack. 5. The C.D.A., by filing counter affidavit, has taken the plea that the Petitioner cannot be allowed to sell the aforesaid land, as both the spouses are holding two plots, and this is a case of Double Allotment. It is also specifically averred that, father of the Petitioner, during his lifetime, has not taken physical possession of the said Plot. Petitioner's father had however deposited all the dues and the plot has been allotted in favour of the Petitioner's father. 6. The word 'allotment' in common parlance means the act of allotting something, and in the present case - a plot. Double allotment, therefore, in common parlance means case of two allotments of plots. Petitioner's father had however deposited all the dues and the plot has been allotted in favour of the Petitioner's father. 6. The word 'allotment' in common parlance means the act of allotting something, and in the present case - a plot. Double allotment, therefore, in common parlance means case of two allotments of plots. In the present case, one Plot, i.e. Plot No. D/200 in Sector-6, C.D.A., Cuttack was purchased by the Petitioner's husband through 3rd Party Transfer in the year 2001. Plot No.13-3E/1028 in Sector-13, C.D.A., Cuttack was inherited by the Petitioner as the sole successor after the death of her father on 23.01.2011. In 2001 when Petitioner's husband purchased Plot No. D/200 in Sector-6 through 3rd Party Transfer, the Petitioner had no knowledge that her father would expire on a particular date in 2011, succession shall open immediately and she shall be benefitted with a Plot by such succession. It is no more res integra and it is also settled law that succession opens with immediate effect on death of the predecessor's-in-interest and there is no law to stop the process of succession. 7. Mr. Dayananda Mohapatra, learned counsel for the C.D.A. submits that, a 3rd Party Transfer is to be understood as a case of allotment by the C.D.A. in as much as when application of 3rd Party Transfer is made, the lease in respect of the vender is cancelled and a new lease in favour of the vendee is created, making the vendee the allottee under the C.D.A. on transfer of the land. 8. There is no dispute to the proposition that C.D.A. being the Development Authority has paramount control over transfer of land within the project area under the Odisha Development Authority Act. No transfer can be made within the project area without permission of the C.D.A. Even, in case of 3rd Party Transfer, permission of the C.D.A. is obtained, which is processed officially and permission is granted by the concerned R.D.C. and a new interest is created in favour of the 3rd Party Transferee. Such is the case in the event of succession. On death of an allottee, succession takes place and a new lease is created in favour of the successor(s). 9. Had it been a case that the Petitioner succeeded to the property (Plot No.13-3E/1028) earlier and her husband purchased the property (Plot No. D/200) later, things would have been different. Such is the case in the event of succession. On death of an allottee, succession takes place and a new lease is created in favour of the successor(s). 9. Had it been a case that the Petitioner succeeded to the property (Plot No.13-3E/1028) earlier and her husband purchased the property (Plot No. D/200) later, things would have been different. Because, husband and wife being one unit, both could not have held two plots at a time within the project area of C.D.A. The wife (petitioner) having succeeded, got a plot, and with the knowledge of such succession if the petitioner's husband would have opted to purchase another plot in the project area of C.D.A. through 3rd Party Transfer, that would have become a case of Double Allotment. In the present case, however, things are different. The husband of the Petitioner purchased Plot No. D/200 in Sector-6 through 3rd Party Transfer in the year 2001 and the Petitioner succeeded to the property (Plot No.13-3E/1028 in Sector-13) as the sole successor of her deceased father in the year 2011. She had no choice to deny the succession, as it was automatic with immediate effect, and the authority of C.D.A. cannot also deny succession in such a case. The sources of transfer of both the plots in favour of the Petitioner and her husband respectively are different, one is by chance and another is by choice. Petitioner's husband, before 10 years of death of his father-in-law, had purchased the property by choice. The Petitioner succeeded to the property of her father as the sole successor of her father by chance in 2011. So, in my view, the case cannot be said to be one of Double Allotment. 10. Another thing, which touches my heart, is the suffering of the Petitioner from Cancer, which is a dreaded disease. There is no denying of this fact. Treatment of Cancer involves heavy expenditure, harassment and pain. The Petitioner having no other alternative source, is ready to part her property she had inherited from her father, and it must have been a painful decision also. 11. Regard being had to all such facts and especially the discussion supra, I deem it just and proper to allow the Writ Petition. 12. The Petitioner having no other alternative source, is ready to part her property she had inherited from her father, and it must have been a painful decision also. 11. Regard being had to all such facts and especially the discussion supra, I deem it just and proper to allow the Writ Petition. 12. The Petitioner is directed to file proper application before the C.D.A. for 3rd Party Transfer of her Plot No.13-3E/1028, Sector-13, C.D.A., Cuttack, within a period of two weeks from today, and such application be processed in accordance with law in order to accord permission for 3rd Party Transfer by the competent authority. The entire exercise be completed within a period of two months from the date of filing of the application for 3rd Party Transfer by the Petitioner. 13. The Writ Petition is disposed of accordingly. 14. Due to pandemic situation for COVID-19, authenticated copy of this order downloaded from the website of the Orissa High Court, in the manner prescribed vide this Court's Notice No.4587, dated 25.03.2020, shall be treated at par with the certified copy of this order.