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Durga Prasad Tibarewal v. State of Orissa

Orissa HC11 Sept 2017WP(C)/22977/2016

Case brief

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What is this about?

This writ petition challenged the Deputy Collector's refusal to grant a No Objection Certificate for the sale of inherited Khasmahal lease land with 'stitibana' status. The High Court held that a valid 2011 lease deed governed the case, entitling the petitioner to apply for NOC under its terms. The Court quashed the refusal as being outside the law and directed the Collector to issue the NOC withi

What did the court decide?

Quashed the Deputy Collector's refusal and ordered the Collector, Cuttack to issue NOC within seven days of receipt of the order.

2. Mr.Mohapatra, learned counsel for the petitioner submits that the father of th e petitioner has got permanent Khasmahal lease over the case land and after his death, the pet itioner inherits the said Khasmahal lease of the case land, under Orissa Government Land Settl ement Amended Act, 1991 read with O.G.L.S. Rules, 1983. As the petitioner was running a shop o n the part of the residential house constructed over the caseland, the Collector, Cuttack trea ted it to be a lease for non-homestead purpose and directed to execute lease deed on permanent basis with heritable and transferable right with condition to obtain No Objection Certificate (NOC) in case of sale. Not only the lease deed was executed but also the ROR has been issued in favour of the petitioner with stitiban status.

3. Mr.Mohapatra, learned counsel for the petitioner submits that in the meantime the petitioner, being in need of money, applied for issuance of no objection certificate to tr ansfer the case land and it was registered as Khasmahal Lease Misc. Case No.83 of 2015. The Ta hasildar, Sadar Cuttack recommended the case of the petitioner vide Annexure-5 to accord neces sary permission to issue no objection certificate, but the Deputy Collector, Cuttack, under th e instruction of Collector, Cuttack returned the matter observing that the O.G.L.S. Amendment Rules do not provide for execution of the lease deed and execution of such lease deed was vagu e. It has been further observed by the Deputy Collector that when a case land is recorded with stitiban status, there is no need to seek permission for sale. He asked the Tahasildar vide A nnexure-10 to re-examine the matter and take necessary steps as per law, but the Tahasildar, S adar Cuttack vide Annexure-9 made order after re-examination that the case land was found to h ave been correctly settled and accordingly recommended again for issue of NOC in favour of the petitioner but the Collector, Cuttack sat over the matter.

4. He further contended that once the land has been permanently leased out follow ed by lease deed executed under the then O.G.L.S. Act and rules made thereunder stipulating th e conditions for granting no objection certificate in case of a sale by lessee, the observatio n of the Deputy Collector is de hors the law, inasmuch as the previous Rules under the Act are applicable to petitioner in view of the facts and circumstances of the case. So, he prayed to direct the opposite parties to issue NOC to the petitioner to sell portion of the case land. 5. Mr.Pattnaik, learned Additional Government Advocate fairly submits that the pe rmanent lease undoubtedly connotes stitiban status and the same is heritable and transferable. In view of the facts and circumstances of the case, when lease deed has been executed in acco rdance with the then existing OGLS Rules, the petitioner is bound by the terms and conditions of the lease deed executed between the petitioner and the opposite parties.

6. Considered the submissions of the learned counsel for the respective parties. It is th e admitted fact that after the death of the father of the petitioner, he inherited Khasmahal l ease over the homestead land of course under fresh Khasmahal Lease Case No.1905 of 2008 and pa rt of the same is being used as shop. It is not in dispute that the petitioner and the concern ed Revenue Officer have executed registered lease deed on 28.06.2011 in respect of the case la nd, in accordance with Orissa Government Land Settlement Amended Rules, 1983 read with Schedul e-V and prescribed Form-III. Clause-III of such lease deed, being binding on both the partie s, the stipulation therein that the petitioner is required to obtain written permission of the Collector for mortgage/transfer by sale or gift or otherwise of the case land.

7. Under Sub-section 4 of Section-3 of the Amendment Act 1 of 1991, the Khasmahal lease i s permanently settled with heritable and transferable rights with the person who is in possess ion of the case land for three years prior to the date of amendment date. But provisions of Am ended Rules, 2014 clearly shows that the persons in occupation of the land in urban area for t he purpose other than homestead or agriculture can apply for settlement and applications pendi ng on the date of commencement of such rule shall be deemed to have applied under the Rules, 2 014 for disposal. But, such amended rules do not prescribe that lessees who have already got l ease of the land in urban area used as non-homestead purpose have to again apply for fresh lea se. On the other hand, under such provisions of Amended Rules, the lessees who have got valid lease made under rules, are deemed to have valid settlement under OGLS rules amended in 2014. Thus, such amended rule 2014 is prospective in nature where fresh lease application are filed or already filed are dealt accordingly.

8. In view of the above discussion, since the petitioner has applied vide Misc. Case No.8 3 of 2015 seeking NOC to sell the Khasmahal land in accordance with the lease deed and the Tah asildar has already recommended in accordance with such lease deed, the refusal of recommendat ion by the Deputy Collector, Cuttack with a direction to the Tahasildar, Sadar Cuttack to re-e xamine the matter is not tenable.

and hence the observation of the Deputy Collector, Cuttack with letter vide Annexures-7 and 10 respectively to the Tahasildar, Sadar Cuttack being de hors the law are liable to be quashed and the Court do so. We, therefore, direct the Collector, Cuttack to issue NOC on the recommen dation of the Tahasildar, Sadar Cuttack already made on 23.11.2015 and 26.09.2016 without any further delay within a period of seven days from the date of receipt of this order.

Durga Prasad Tibarewal v. State of Orissa

Case brief

What is this about?

What did the court decide?

Durga Prasad Tibarewal v. State of Orissa

Case brief

What is this about?

What did the court decide?

What the court decided

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