Allowed

Shanti Kumari Mahato v. Rourkela Development Authority

Orissa HC15 Dec 2021WP(C)/22092/2015

Case brief

AI extract

What is this about?

The High Court of Orissa allowed a writ petition quashing the cancellation of a shop allotment, finding the termination order issued due to alleged subletting to be unsustainable without proof of violation and noting that dismissed prior petitions did not create res judicata. Relief granted included removal of the alleged trespasser.

What did the court decide?

Cancellation of allotment cancellation date 4.9.2015 set aside; opposite party no.3 to be removed; petitioner allowed to resume business; deposit by opposite party to be refunded.

Shanti Kumari Mahato Vs Rourkela Development… — Contract and Commercial Disputes | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.C. No. 22092 of 2015

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(Through Hybrid Mode)

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….. Petitioner Shanti Kumari Mahato

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Ms. S. Pattnaik, Advocate Vs. Rourkela Development ….. Opposite Parties Authority and others Mr. D. K. Mohapatra, Advocate for O.Ps.1 and 2 Mr. M.K.Rath, Advocate for O.P.3

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CORAM: JUSTICE ARINDAM SINHA

ORDER

15.12.2021

Order No.

1. Ms. Patnaik, learned advocate appears on behalf of petitioner. Her client is aggrieved because allotment in respect of shop granted to her client was cancelled. She submits, purported reason for cancellation was initially on physical verification on 22^nd June, 2015 and subsequent communication dated 4^th September, 2015, saying that her client had violated terms and conditions of licence agreement dated 5^th February, 1979 by subletting/sale of the shop to opposite party no.3. Pursuant to orders passed in earlier writ petitions, there was order dated 21^st November, 2015 made by Secretary, Rourkela Development Authority. Justification for the cancellation and allotment of the shop room to her client’s alleged transferee was directed. Later on alleged

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violation of clauses 13,15,27 and 39 in the licence were added by said order. She submits further, initial cancellation of allotment by communication dated 4^th September, 2015 was only on clause 39. Her client did not violate any of the terms of the licence.

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Mr. Mohapatra, learned advocate appears on behalf of opposite party nos.1 and 2. He draws attention to his clients’ counter and submits, clause 4 in the licence also has been violated. Mr. Sahu, learned advocate appears on behalf of opposite party no.3 and submits, his client was tenant under petitioner. On query from Court, he is unable to disclose any rent receipt.

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Initial termination though coming after three months of physical verification, may be taken as contemporaneous action on joint verification held on 22^nd June, 2015. Reason given therein is as follows:-

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“ As such the licensee namely Sri/Smt. Santi Kumari Mahanto has violated the terms and conditions of License agreement by Subletting/sale the shop to Sri S.K. Faruque Alli”

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The termination does not refer either to rent receipt or date of sale. On perusal of the brief it appears, writ petitions were earlier filed. Termination was ratified by order dated 21^st November, 2015 passed by Secretary, Rourkela Development Authority. In said order, there were references to, inter alia , letter dated 14^th September, 2015 of petitioner, affidavit dated 13^th October, 2015 of opposite party no.3 and observation that cancellation dated 4^th September, 2015 was for violation of clause 13, 15, 27 and 39 of the licence.

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Mr. Mohapatra submits further on basis of his written argument, inter alia, the writ petition challenging cancellation dated 4^th September, 2015 is also barred by res judicata. Relevant points in this regard are extracted from the written note and reproduced below:-

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“4. That, the petitioner challenged the above order in W.P.(C) No.18932/2015, which was disposed off before issue of notice by order dt.16.10.2015 directing RDA to re consider the matter (order quoted in paragraph-8 of the Writ Petition).

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5. That, the petitioner again challenged order dt.15.10.2015in W.P.(C) No.19512/2015, which was disposed of before issue of notice by order dt.3.11.2015 (quoted at page No.10 of the Writ Petition), with an observation that,” this court is not inclined to interfere with the impugned order of allotment dt. 15.10.2015, which was made prior to disposal of the (earlier) Writ Petition. Accordingly the Writ Petition is dismissed”.

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Mr. M. K. Rath, learned advocate also appearing on behalf of opposite party no.3 files written submission, from which it will be sufficient to set out point numbers 1, 2 and 3. Said points are as follows:-

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1. That, O.P. No.3. is doing business of readymade garments in the name and style of Kolkatta Fashion and was in search of shop room. Petitioner was having a license from RRIT/RDA to run a tailoring shop in one of its shop room. Since petitioner was not running her tailoring shop, she inducted O.P. No.3 as a monthly tenant of Rs.6,000/- per month to run his readymade garment business. However, petitioner never issued any rent receipt to this O.P.No.3.

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2. That under misrepresentation and undue pressure (that RDA requires a partnership deed for continuance of my tenancy), a partnership deed was executed by the petitioner. The petitioner has no role, no contribution and no

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participation at all in running my business in the said shop room except collecting rent @ Rs.6,000/- per month without any receipt.

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3. That for sake of argument but without admitting that, there was a partnership then petitioner could not be aggrieved, if the allotment in the name of one partner is changed to be reallotment in the name of other partner.”

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6 It will appear on face of extract made from written argument of opposite party nos.1 and 2 that earlier writ petition was disposed of without issuance of notice. There cannot be res judicata contended on writ petitions disposed of without adjudication.

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So far as written submission of opposite party no.3 is concerned it appears therefrom, said opposite party is neither in possession of rent receipt nor partnership agreement. Said opposite party is a complete trespasser and the authority has acted in his favour.

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Cancellation dated 4^th September, 2015 is set aside and quashed. The authorities will take steps immediately to remove opposite party no-3 from the shop and allow petitioner to do business. In event petitioner is thereafter unable to do business, the authorities are at liberty to take steps for cancelling her allotment, in accordance with law. So far as any deposit that may have been made by opposite party no.3, to the authorities, they should forthwith refund the same.

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The writ petition is disposed of.

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(Arindam Sinha) Judge

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Prasant

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Shanti Kumari Mahato v. Rourkela Development Authority

Case brief

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Shanti Kumari Mahato v. Rourkela Development Authority

Case brief

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