Judgment:
1. Heard further argument & the Judgment is as follows.
2. Petitioner has filed this Writ Petition with the prayer to quash the order, Annexure-1, passed on 05.07.2006 by the Opposite Parties 1 & 2 determining the lease with respect to plot No. K-1, area Ac.0.124 decimals measuring 60' x 90' at Unit-Ill, Kharavela Nagar in the new capital Bhubaneswar, District - Khurda, drawing No. B/1032 corresponding to lease Plot No. 524 (PT) under Khata No. 441 (G.A. Department) under the jurisdiction of District Sub-Registrar, Bhubaneswar (hereinafter referred to as disputed plot).
3. There is no dispute to the factual aspect that on 18.03.2000 by virtue of a lease deed the aforesaid plot was leased out by the Opposite Party No. 1 in favour of the Petitioner for construction of budgeted hotel & the lease was made operative for ninety years. The premium amount was fixed at Rs. 6,19,835 (six lakhs nineteen thousand eight hundred thirty five) & was permitted to be paid in eight half yearly installments with 12% interest, & out of the same five installments were not paid by the date of the order, Annexure-1. In Clause-2 (iv), Clause-2 (xiii) & Clause-4 (1) conditions were stipulated, inter alia, not to use that premises for any other purpose except the hotel purpose & to complete the building within the stipulated period of three years. The Opposite Party complained of encroachment by the Petitioner of an area of Ac.0.261 decimals from the adjacent government land appertaining to plot Nos. 524 (part), 525 & 526 (part) &, apart from that, Petitioner submitted application for construction of a shopping mall instead of hotel. As on date no construction has been made with due approval of the competent authorities.
4. Petitioner challenges Annexure-1, inter alia, with the assertion that the Opposite Party could have granted relaxation on the period of construction as well as for use of the premises of construction of shopping mall instead of hotel & also the defaulted installments could have been otherwise realized in view of the fact that subsequent payments (after the due date of installments) at times was accepted.
5. While issuing notice to the Opposite Party, on 19.09.2006 interim order was passed in Misc. Case No. 10499 of 2006 that any decision taken on the lease-hold properties shall be subject to the result of the Writ Petition. On 02.12.2008 another interim order was passed by the Bench directing the parties to maintain status quo in respect of the leasehold plot. On 16.01.2009 another interim order was passed, vide order No. 11, & that is quoted below for ready reference.
Learned Government Advocate may obtain instruction as to whether the Petitioner has paid installments in respect of the land in question allotted to him on lease for the purpose of construction of Hotel. If he has paid the instalments & would submit the sanctioned map of the Hotel building for the purpose of construction & undertake 10 construct the same within a period of six months, the lease granted in his favour can be restored.
List this case on 6th of February, 2009. Interim order passed earlier shall continue till next listing of the case.
6. After the above-quoted order, Petitioner does not pursue the relief claimed in the writ petition, but seeks equitable relief of continuance of the lease on his willingness to make full payment & also to construct the budgeted hotel within the stipulated time undertaken by the Petitioner. Therefore, when we took up the case for hearing & disposal, Learned Counsel for the Petitioner brought to our notice the above-quoted order & in that respect the State took time to obtain instruction. Instruction obtained by the Learned Counsel for the State being responsive to suggestions in order No. 11, therefore, in course of submission it came on record that construction of the hotel has to be with the approval of the plan by the BBSR Development Authority (in short 'B.D.A.'). Under such circumstance, on the application of the Petitioner B.D.A. was added as Opposite Party No. 3 & the said authority has also filed affidavits expressing its view point.
7. While taking up the matter today for final disposal, in course of hearing, we ascertained the views of all the parties & in view of that Petitioner can continue as a lessee & construct the hotel within a stipulated time, provided he abides by the undertakings made in course of submission & in that respect the Opposite Party members perform their part of performance.
8. On the basis of such submission of the parties, we dispose of this Writ Petition under the following directions-
(i) Within a period of 2 weeks from today the Opposite Parties 1 & 2 shall intimate to the Petitioner about any further payment to be made by the Petitioner in respect of the leasehold property so as to retain the lease in his favour. If no further amount is to be paid, then such a clearance certificate be provided to the Petitioner;
(ii) As above, if any amount is demanded by the Opposite Parties 1 & 2, then Petitioner is to pay the same within a further period of two weeks. If he has any objection to any such demand, then he may file a written objection before Opposite Party No. 2 together with the Bank Draft in proof of payment of the demanded/notified amount. Such objection be considered by the Opposite Parties 1 & 2 on the basis of factual submission & the facts available in the departmental file & the provision of law but within a period of six weeks. Any disagreement in that respect would be subject to remedy, as provided under law, & the Petitioner may approach the appropriate forum accordingly. The Bank Draft so submitted be kept in a Term Deposit in a Nationalized Bank until adjudication of the objection by the Opposite Parties 1 & 2. If Opposite Parties 1 & 2 accept the objection, then appropriate amount be refunded to the Petitioner;
(iii) Petitioner shall deliver vacant possession of the above noted encroached area within two weeks;
(iv) Opposite Parties 1 & 2 shall keep in abeyance the order, Annexure-1, & grant a conditional certificate in favour of the Petitioner as the lessee so that Petitioner submits its plan to the B.D.A. within one week from the date of receipt of no objection certificate from Opposite Parties 1 & 2;
(v) The B.D.A. shall consider approval of the plan & convey its decision to the Petitioner & also to the Opposite Parties 1 & 2 within a period of six weeks from the date of receipt of the application. In case of non-approval or rejection of the plan by the B.D.A., Petitioner is at liberty to approach the appropriate superior forum, as provided under law;
(vi) If the plan is approved, then Petitioner shall undertake the construction & complete it within a period of six months from the date of approval. In course of such construction if the construction is not completed within that stipulated period & Petitioner gives a further undertaking to complete it within a further estimated period not exceeding three months & also with the undertaking not to see for any further extension of time, then that would be appropriately be considered by the Opposite Parties, provided such application for extension of time is filed at least three weeks before the date of expiry of the stipulated time of six months. In that respect the Opposite Party members are directed to consider such application for extension within a period of three weeks from the date of its filing;
(vii) For any reason if the Petitioner would not be able to abide by the aforesaid undertakings & defaults in making payment, submission of plan, or execution & completion of the work (in the above-indicated manner), then it be deemed that lease is determined in accordance with Annexure-1 & Petitioner shall give vacant possession of the premises within one month thereafter after removing his belongings & the construction materials. In the event of failure of the Petitioner to comply with the directions in the aforesaid manner, Opposite Parties 1 & 2 are at liberty to take possession of the premises with existing materials on expiry of the aforesaid period of one month, & in that respect Petitioner shall not be entitled to refund of any material or money & also he shall forfeit the right to claim for damage whatsoever;
(viii) That, Petitioner shall file an undertaking within two weeks signed in presence of the Opposite Party No. 2, wherein he undertakes & stipulates all the aforesaid directions as conditions binding on his & to be followed & observed by him.
9. The aforesaid directions be scrupulously followed & observed in time by each of the parties to the proceeding & for his failure when the Petitioner is liable to forfeit right over the property (as per the stipulated conditions), the Opposite Parties would be liable for violation in compliance & execution of the directions of this Court.
10. On the above-noted facts & circumstances, we dispose of this Writ Petition without interfering with Annexure-1, but direct Opposite Parties 1 & 2 to re-consider the same in the event the terms & conditions are fulfilled by the Petitioner till completion of the construction of hotel & to pass revised order accordingly at subsequent stage. On completion of the construction if Opposite Parties 1 & 2. would not consider the case of the Petitioner within a reasonable time of three months from the date of intimation about completion of the hotel, then Petitioner is at liberty to take appropriate action against the said Opposite Parties & the officers, who would have been responsible for such non-implementation, would be personally liable for the loss & damage suffered by the Petitioner & for that the State exchequer need not be burdened, unless it is established on record by such officers that notwithstanding their willingness efforts & endeavour decision could not be taken in the above-indicated manner & within the above stipulated period because of any negative approach of the State or any changed policy of the State.
11. The Writ Petition is disposed of accordingly.
12. Since this order is passed in presence of all the parties, therefore, they are at liberty to obtain urgent certified copy of this order to perform their part of responsibility in respect of the aforesaid direction, & for that purpose requisites need not be filed to communicate this order. Urgent certified copy of this order be granted on the same date of application.