Passing of an interim order, does not confer any right of perpetuity: Odisha High Court

 IN THE HIGH COURT OF ORISSA AT CUTTACK WRIT PETITIONNo.1885 OF 2014 An application under Articles 226 & 227 of the Constitution of India.) Shikha Bhowmick and another Petitioners Versus State of Odisha and others Advocate(s) appeared in this case by Video Conferencing mode: ….… Opposite Parties For Petitioners For Opposite Parties Mr.Ramakanta Mohanty Sr.Advocate Additional Government Advocate Mr.Mahitosh Sinha Advocate For O.P.No.5 CORAM: THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY JUDGMENT 17th June 2021 B.P. Routray J. 1. The orders of the Collector Puri and the Revenue Divisional Commissioner Central Division Cuttack vide Annexures 4 & 5 respectively passed under the provisions of Odisha Government Land Settlement Act and Rules have been assailed by the Petitioners. 2. Babu Ashutosh Mallick who is the common ancestor of Opposite Party Nos.5 to 27 was granted Khasmahal lease of the land appertaining to Plot No.500 measuring Ac.0280 dec.No.18814 Plot No.147 area Ac.298 dec) of Mouza Nolia Sahi under Balukhanda Khasmahal Unit No.12 Hal Khata No.33 Holding No.716 Circle No.X under Puri Municipality. The lease was for a period of thirty years effective from 2nd December 1919 to 1st December 1949. On expiry it was renewed twice for the period from 2nd December 1949 to 1st December 1979 and from 2nd December 1979 to 1st December 2009. Babu Ashutosh Mallick had four sons namely Jyoti Prasad Mallick Amiya Prasad Mallick Radha Gobindo Prasad Mallick and Shiva Prasad Mallick. Both the extensions were made in favour of the Legal Representativesof Babu Ashutosh Mallick. 3. A building namely ‘Ashu Bhawan’ was constructed over the leasehold land by the original lessee Babu Ashutosh Mallick. On 27th August 1952 the land along with ‘Ashu Bhawan’ was given on sub lease with monthly tenancy for a period of fifteen years in favour of one Makhanlal Halder. The said Makhanlal Halder continued the hotel business in ‘Ashu Bhawan’ in the name and style of ‘Puri Hotel’. Before expiry of fifteen years Makhanlal Halder by subsequent Sub lease inducted one Jatindranath Bhowmick to run the hotel business in the name and style of ‘Sagarika Hotel’. Upon expiry of fifteen years period of Sub lease on 26th August 1967 the L.Rs of Ashutosh Mallick executed another Sub lease on monthly in favour of Jatindranath Bhowmick for a period of twelve years eleven months effective from 2nd January 1967 to 1st December 1979. During this period Bhowmick was permitted to make additional construction work on the land including the extension work of Ashu Bhawan to use for commercial purpose. In the meantime Jatindranath Bhowmick died and a fresh Sub lease was granted by the L.Rs of Ashutosh Mallick in favour W.P.(C) No.18814 of two daughter in laws of Jaitndranath Bhowmick viz. Smt.Sikha Bhowmick and Smt. Ruby Bhowmick the present Petitioners for a period of ten years with effect from 2nd December 1979 to 1st December 1989 on payment of monthly rent. Before expiry of the said period of sub lease the L.Rs of Ashutosh Mallick served a notice on 30th May 1989 on the Petitioners to handover vacant possession of the property immediately after 1st December 1989. The said notice is reproduced below: “BY SPEED POST WITH A D FOR AND ON BEAHLF OF SRI DHRUBA PRASAD MALLICK SHRI ALOK KUMAR MALLICK AND OTHERS LESSORS IN RESPECT OF PROPERTY FROM EARLIER AS ASHU BHAWAN SITUATED IN THE SEA BEACH AT PURI Smt.Sikha Bhowmik w o.Sri D.K.Bhowmik Smt.Ruby Bhowmik w o.Sri Anup Kumar Bhowmik At Hotel Sagarika Dear Madam The Lessors have transmitted the document as executed between you and then on 13.7.1981 in respect of lease of the property as owned by the lessors and situated in the sea beach at Puri and known then as Ashu Bhawan. By virtue of the said agreement you have had been carrying on hotel business in the said property or existing of land and building on payment of monthly rent. As instructed by my clients I am to invite your kind attention to Clause I of and as well Clause VII of the said agreement. For convenience they are extracted hereunder: The lease of the premises mentioned in the schedule herein below shall be for a period of ten years commencing on and from the 2nd day of December 1979 and shall expire on the 1st day of December 1989 W.P.(C) No.18814 The Lessees shall keep in deposit with the lessors a sum of Rs.10 800 only being six month rent as security deposit which shall be adjusted against the rents payable for the said demised premises for the last six months of the lease.” Purpose of this letter is to invite your kind attention to the date of expiry of the lease agreement which in first expires on 1st December 1989. My clients have decided not to let out the said property any more. In fact they are now in need of such a building in order to be able to use it for their own residence in old age and for health care. It would be really kind of you if you please make it convenient to give vacant possession of the said property on or immediately after the date of expiry of the lease as agreed to in the aforesaid agreement which as you may kindly recall expires on 1st December 1989. It is further brought to your kind notice that no rent need be paid for the last six months since the rent would be adjusted by virtue of clauseof the said agreement. My clients will really be happy if you kindly acknowledge the receipt of this letter and please do the needful in pursuance of the said agreement and now reminded herein. My clients are hopeful that the arrangement would be effected peacefully and in the most gentleman like manner. May I also thank you in anticipation of your kind co operation in the matter. Place: as follows: Yours faithfully No.18814 one hand and the undersigned on the other hand we became lessees in respect of your house and premises known as “ASHU BHABAN” with the land appurtenant thereto at Puri for a period of 10 years commencing on and from 2nd day of December 1979 and expiring on the 1st day of December 1989 at a rental of Rs.1 600 per month for the first five years and Rs.1 800 per month for the remaining five years payable according to the English Calendar month. Under the said lease we the Lessees are also liable further to pay to the State Government the rent of the land payable by you at the rate of Rs.357 annually and also the Municipal Taxes payable for the demised premises amounting to Rs.1 028 30 per year. That the Lease aforesaid expires on the 1st day of December 1989 and we the Lessee being desirous of continuing our possession of the said premises as tenant after the said date of expiry of the Lease for a further period of twelve months at the said rate of rent hereby give you notice under Section 11 of the Orissa House House Rent Control Act 1967 and we hope you will be good enough to extend the term of tenancy for a further period of twelve months commencing from the expiry of 1st December 1989 in other words commencing on and from the 2nd day of December 1989. Please also take note of the fact that the rent payable in respect of the said premises under said Deed of Lease dated the 13th July 1981 has been paid up until the date of the said Lease i.e. up to and including 1st day of December. The rent of the said premises will be remitted to you month by month or if you so choose the same may be sent in a lump for the whole period of twelve months at a time. In case of your refusal to accept rent from us we shall be constrained to deposit the said with the office of the Controller under the Orissa House Rent Control Act 1967 which please note. Thanking you Yours faithfully ” 5. As the Petitioners did not hand over vacant possession of the property the L.Rs of Babu Ashutosh Mallick filed Title Suit No.9 of 1990 in the court of the learned Sub ordinate Judge Puri against the Petitioners praying for a decree for eviction along with damages. The present Petitioners who are defendants in T.S.No.9 of 1990 filed Misc.Case No.2291 praying for temporary injunction restraining W.P.(C) No.18814 the plaintiffs from interfering with their peaceful possession. Learned Sub Judge Puri by order dated 31st March 1992 directed to maintain status quo in respect of the suit property subject to deposit of agreed monthly rent regularly in Court by the present Petitioners. 6. The Odisha Government Land Settlement Act 1962underwent amendment by Odisha Act No.1 of 1991 and Sub section 4 to Section 3 was inserted with effect from 2nd September 1993. It reads as follows: “(4) Notwithstanding anything to the contrary contained in the preceding subsections or in any law or any custom practice or usage having the force of law a) any Khasmahalland or Nazul land except where such land is used as homestead in any urban area which has been leased out prior to the appointed date shall whether the lease where it had already expired has been renewed or not prior to such date be deemed to have been leased out under this Act to the person holding such land whether as a lessee or as a sub lessee either under the lessee or under a sub lessee: Provided that a) i) from sub lessee under him or any such lessee who is entitled to receive any rent any such sub lessee who is entitled to receive any ii) rent from a subsequent sub lessee under him. under any instrument executed for such lease or sub lease as the case may be shall be paid a compensation by the sub lessee or subsequent sub lessee as the case may be equivalent to ten times the said rent in the manner as may be prescribed. b) The compensation so payable shall if not paid by the concerned sub lessee or subsequent sub lessee as the case may be within the prescribed period be recoverable from him by the Tahasildar having jurisdiction over the area as arrears of land revenue and be paid to the concerned lessee or sub lessee as the case may be in the manner as may be prescribed: W.P.(C) No.18814 c) any Gramakantha Parambok land or Abadi land except where such where such land is used as homestead in any urban area which is in occupation by any person for not less than five years as on the appointed date shall be settled with the said person in such manner by such officer and subject to such terms and conditions as may be prescribed: Provided that any such land which is situated in an urban area shall be settled on lease hold basis and in case of other lands settlement shall be on raiyati basis: c) any Khasmahal land Nazul land Gramakantha Parambok land or Abadi land which is used and in occupation by any person as homestead in any urban area for not less than five years as on the appointed date shall subject to the payment of compensation in the case of Khasmahal and Nazul land as mentioned in the proviso to Clausebe settled in the case of Khasmahal or Nazul land with the person lawfully holding such land on and from the date the compensation is paid: and in the case of Gramakantha Parambok and Abadi land with the person in occupation of such land on and from the appointed date on permanent basis with heritable and transferable rights. Explanation For the purposes of this sub section the expression ‘appointed date’ shall mean the date of publication of the Orissa Government Land Settlement Act 1990 in the official 7. Correspondingly Rule 5 B was inserted in Orissa Government Land Settlement Rules 1983 with effect from 7th December 1993 which reads as follows: “5 B. Notwithstanding anything contained in Rules 3 5 5 A 8 11 12 13 settlement of Khasmahal and Nazul land Gramakantha Parambok and Abadi land leased out prior to the 9th day of January 1991 shall be made in the manner prescribed in Schedule V.” 8. Clasue 3 of Schedule V reads as under: “3. Nazul Khasmahal lands used as homestead in urban areaTahasildar on being satisfied after enquiry that W.P.(C) No.18814 any Nazul Khasmahal land is used and in occupation by any person as homestead for a period of not less than five years as on the appointed day shall settle the said land in favour of the person holding such land on execution of lease deed in Form IV. In case of a sub lessee and subsequent sub lessee such settlement shall take effect on production of the stamped receipt in Form 1 from the date of payment of such compensation to the personimmediately under whom they held the land: Provided that on each such settlement approval of the Collector shall be obtained. The amount of compensation shall be equal to ten times of the annual rent as provided in the lease deed.” 9. During pendency of the Eviction Suit the L.Rs of late Shiva Prasad Mallick executed Lease Deed No.3670 dated 29th October 1993 creating sub lease in favour of the Petitioners for a period of ten years with effect from 1st December 2009. 10. Here the real dispute erupts. 11. In 1995 the Petitioners applied for permanent settlement of the property in their favour under Section 3(4)(a) of the O.G.L.S.Act in BPL Case No.995 to the Tahasildar Puri. The Tahasildar allowed the prayer of the Petitioners on 30th April 1997 with approval of the Collector Puri and settled the property in the name of the Petitioners. 12. The other L.Rs of Babu Ashutosh Mallick filed O.J.C. No.8691 of 2000 before this Court challenging the aforesaid lease made in favour of the Petitioners. By order dated 18th March 2008 the said writ application was disposed of as withdrawn to approach the R.D.C.(CD) Cuttack in appeal. Then Khasmahal Appeal No.1 of 2008 was filed before the R.D.C. by the present Opposite Party No.5 and the R.D.C. by order dated 28th November 2008 remitted the matter back to the W.P.(C) No.18814 Collector Puri for re examination with direction to resume the land first if necessary and take steps to lease out the same to the eligible person as per the law. The said order of the R.D.C. was challenged by the present Petitioners in W.P.(C) No.1961 of 2012 before this Court and this Court while declining to interfere with the order of R.D.C. disposed of the same with an observation that the Collector Puri is directed to decide matter and consider all other contentions to be raised by either parties in accordance with law. Thereafter the Petitioners moved before the Hon’ble Supreme Court in SLP(C) No.175912. The Supreme Court by order dated 13th July 2012 disposed of the S.L.P. with following directions: “After having heard learned counsel for the petitioners and after perusal of the record we are not inclined to interfere against the impugned order passed by the Division Bench of the High Court as by the same matter has only been remanded to Collector Puri to decide the issue in accordance with law. However Division Bench has also directed that the land should be resumed first before considering the question of grant of fresh lease. Once the matter has been remanded for inquiry and if land is also resumed then it would put the petitioners to an irreparable loss and injury. Admittedly the petitioners are in possession of the said disputed land since 21.6.2000 by virtue of the Deed of Lease duly executed by the Government of Orissa in favour of the petitioners and it is a registered document. Thus looking to the facts and features of the case we deem it fit and proper to direct the Collector to dispose of the matter as expeditiously as possible and preferably within a period of 30 days from the date of communication of this order and only till the disposal of the matter by the Collector the possession of the petitioners shall not be disturbed if they still continue to be in possession. It is also expected that none of the parties would seek undue adjournment of the matter. Special leave petition is accordingly disposed of. Registry is directed to remit the copy of the order to Collector Puriforthwith.” W.P.(C) No.18814 13. The Collector Puri by order dated 13th December 2013 disposed of the matter by directing as follows: “.. XX …. XX …. XX .. a) Permanent Settlement in BPL Case No.94 95 is hereby cancelled. The land is resumed to Government. b) Tahasildar Puri is directed to correct ROR of the case land to Govt.khata and intimate DSR Puri for cancellation of lease deed. Petitioners are directed to vacate the building and its premises within one month i.e. by 15th January 2014. d) Tahasildar Puri is directed take over possession of the land and building by 16.1.2014. e) No compensation is awarded to either of the parties. Prayer of both parties is rejected. Possession of the land and building by petitioners is hereby vacated by 15th January 2014. g) ADM Sub Collector are directed to ensure the compliance of the above order by Tahasildar. Fresh lease to be considered by the Competent Authority in accordance with law. XX …. XX …. XX ….” 14. The Petitioners preferred Khasmahal Lease Appeal No.1 of 2014 against the order of the Collector Puri dated 13th December 2013. The R.D.C. by order dated 3rd January 2014 dismissed the appeal filed by the Petitioners. These two orders of the Collector and R.D.C. are the subject matter of challenge before this Court in the present writ petition. 15. It is contended by the Petitioners that once the matter was decided by the Tahasildar with the approval of the Collector and the registered lease deed was executed in favour of the Petitioners no further scope W.P.(C) No.18814 remains for the Collector to cancel the permanent settlement and to resume the land particularly ignoring the temporary status quo order of the civil court. It is also contended that on 3rd January 2014 after a lengthy hearing from both sides the R.D.C. reserved the order in the matter of stay but to their utter surprise receipt of certified copy of the order dated 3rd January 2014 reveals dismissal of the appeal. Further as per the Petitioners the R.D.C. erroneously construed the appeal as a revision and disposed of the same by a cryptic order. 16. On the contrary Opposite Party No.5 contends that the Petitioners unauthorisedly occupied the lease hold property after 1st December 1989 as they do not have any right to continue with possession of the property after expiry of the agreed sub lease period. The subsequent lease deed executed in their favour by the L.Rs of one branch during pendency of the eviction suit does not authorize their lawful possession. Thus the order passed by the Tahasildar in BPL Case No.94 of 1995 was illegal and as such cancelled by the Collector. 17. Admittedly the property has not been partitioned till date. The general principle governing rights of the co owners in a common property is that one co sharer has no right to alienate the entire property to confer exclusive right on the alienee without consent of other co owners and such transfer is invalid for want of competency. However Section 44 of the Transfer of the Property Act authorizes a co owner to transfer his share subject to conditions. 18. Undisputedly the sub lease agreement in favour of the Petitioners expired on 1st December 1989 and much prior to that a notice was W.P.(C) No.18814 served on the Petitioners to hand over vacant possession of the property. Since the Petitioners did not vacate the premises T.S.No.90 was filed by Opposite Party No.5 and other L.Rs for eviction of the Petitioners from the land and premises. Thus without any valid authority the continued possession of the property by the Petitioners after 1st December 1989 was unauthorized and they had to be treated as trespassers from 2nd December 1989 onwards. When the status of the Petitioners remains as such from 2nd December 1989 onwards in respect of the property and the suit for their eviction is pending adjudication the interim order of the Civil Court to maintain status quo in respect of the possession over the property does not confer any right on the Petitioners to have their possession over the property declared as lawful for all purposes. The interim order if any passed by the competent court of law does not confer any right of perpetuity on the parties. It is only meant to serve as an interim arrangement. Therefore the contention of the Petitioners that they are in possession of the property by virtue of the interim order of the civil court or that they were in possession for the preceding five years on the day of coming into force of the newly inserted Sub section 4 to Section 3 of the O.G.L.S Act cannot be interpreted in their favour as rendering their possession on the appointed day as lawful. As such no benefit can be extended in favour of the Petitioners on that score. 19. Moreover Section 4 of Section 3 of the O.G.L.S. Act uses the words ‘…. the person holding such land whether as a lessee or as a sub lessee either under the lessee or under a sub lessee’ which means the holder of the land must be a lessee or a Sub lessee or a subsequent W.P.(C) No.18814 Sub lessee. Here in the instant case strictly speaking the Petitioners were not the lessee or Sub lessee in view of expiration of the Sub lease agreement period on 1st December 1989. It is true that possession of the Petitioners over the property prior to 2nd December 1989 was not to the exclusion of the Opposite Parties. The possession of the Opposite Parties over the property as lessors of the Sub lease continued after the expiry of the Sub lease period on 1st December 1989. Rather the possession of Petitioners ended on the expiry of the Sub lease period coupled with their being served a notice for eviction. Therefore there is no legal error in the order of the Collector directing resumption of the land. 20. Clause 3 of Schedule V of the O.G.L.S. Rules requires that the land must be in use and in occupation as a homestead for a period of not less than five years on the appointed day. As per admitted contention of both the parties the land and building were used as a hotel for commercial purpose and not as homestead. Therefore here too the Petitioners cannot take any benefit from the amended provisions. 21. The contention of the Petitioners that the appellate authority passed the final order on the day of hearing of the stay application also does not hold good on merit in the absence of materials placed on record. The order dated 3rd January 2014 is the final order. Though the said order of the R.D.C. under Annexure 5 appears to be a cryptic one in the absence of any grounds on merit in favour of the Petitioners and in view of long pendency of the writ petition before this Court we W.P.(C) No.18814 do not think it appropriate to remand the matter to the appellate authority at this stage after a period of more than six years. 22. For the aforementioned reasons and particularly in the absence of any right in the Petitioners to continue to be in possession of the land and property after 1st December 1989 we find no merit in the writ petition and the same is hereby dismissed. No order as to costs. 23. Any observation made in this judgment shall not affect the merits of T.S.No.90. 24. As the restrictions due to resurgence of COVID 19 situation are continuing learned counsel for the parties may utilize a printout of the order available in the High Court’s website at par with certified copy subject to attestation by the concerned advocate in the manner prescribed vide Court’s Notice No.4587 dated 25th March 2020 as modified by Court’s Notice No.4798 dated 15th April 2021. B.P.Routray) Judge Chief Justice 17th June 2021 C.R.Biswal Secretary W.P.(C) No.18814 

Summary: The interim order of the Civil Court to maintain status quo in respect of the possession over the property does not confer any right on the Petitioners to have their possession over the property declared as lawful for all purposes. The interim order, if any, passed by the competent court of law does not confer any right of perpetuity on the parties. It is only meant to serve as an interim arrangement. A single bench comprising of Justice B.P. Routray adjudicating the matter of Shikha Bhowmick v. The State of Odisha and Ors. (WRIT PETITION(CIVIL) No. 1885 of 2014 ) dealt with an issue of whether passing of an interim order passed by the Civil Court to maintain status quo conferred rights of possession to the Plaintiffs?  In the present case the orders of Collector, Puri and the Revenue Divisional Commissioner, Central Division, Cuttack passed under the provisions of Odisha Government Land Settlement Act and Rules have been assailed by the Petitioners. Babu Ashutosh Mallick was granted Khasmahal lease for a period of 30 year effective from 2nd December 1919 to 1st December 1949. On expiry, it was renewed twice for the period from 2nd December, 1949 to 1st December, 1979 and from 2nd December, 1979 to 1st December, 2009. Both the extensions were made in favour if the Legal representatives. A building “Ashu Bhavan” was constructed on the lease land by Babu Ashutosh Mallick and such building was further given on sub-lease with monthly tenancy for a period of fifteen years in favour of one Makhanlal Halder. The said Makhanlal Halder continued the hotel business in ‘Ashu Bhawan’ in the name and style of ‘Puri Hotel. Before expiry of 15 years Makhanlal Halder sub-leased the property to Jatindranath Bhowmick to run the hotel business in the name and style of ‘Sagarika Hotel’. After expiry of 15 years of Sub-lease on 26th August, 1967, the L. Rs of Ashutosh Mallick executed another Sub-lease on monthly tenancy in favour of Jatindranath Bhowmick for a period of twelve years eleven months effective from 2nd January, 1967 to 1st December, 1979. During this period, Bhowmick was permitted to make additional construction work on the land including the extension work of Ashu Bhawan to use for commercial purpose. In the meantime, Jatindranath Bhowmick died and a fresh Sub-lease was granted by the L. Rs of Ashutosh Mallick in favour of two daughter-in-laws of Jaitndranath Bhowmick (the present petitioners) for 10 years with effect from 2nd December, 1979 to 1st December, 1989 on payment of monthly rent. Before expiry of the said period of sub-lease, the L. Rs of Ashutosh Mallick served a notice on 30th May, 1989 on the Petitioners to handover vacant possession of the property immediately after 1st December, 1989. Since the Petitioners did not hand over the possession of the property, the L. Rs of Ashutosh Mallick filed a suit for title against the Petitioners praying a decree of eviction along with damages. To which the Defendents (presently Petitoners ) filed for temporary injunction restraining the plaintiffs from interfering with their peaceful possession and the court directed the Defendant to  pay monthly rent regularly. After several litigations in the present writ petition, it was contended by the Petitioners that once the matter was decided by the Tahasildar with the approval of the Collector and the registered lease deed was executed in favour of the Petitioners, no further scope remains for the Collector to cancel the permanent settlement and to resume the land, particularly ignoring the temporary status-quo order of the civil court. The Opposite parties contended that the Petitioners unauthorisedly occupied the lease hold property after 1st December, 1989 as they do not have any right to continue with possession of the property after expiry of the agreed sub lease period. The subsequent lease deed executed in their favour by the L.Rs of one branch during pendency of the eviction suit does not authorize their lawful possession. The court held that relied upon The general principle governing rights of the co-owners in a common property is that, one co-sharer has no right to alienate the entire property to confer exclusive right on the alienee without consent of other co-owners and such transfer is invalid for want of competency. However, Section 44 of the Transfer of the Property Act authorizes a co-owner to transfer his share subject to conditions.