THE HIGH COURT OF ORISSA : CUTTACK W.P.(C) NO.17474 of 2008 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------------Sri Dilip Kumar Pattanaik ………… Petitioner -VersusThe Bhubaneswar Development Authority and another ………… For Petitioner : In person For Opp. Parties : Opp. Parties Sri Buddhadev Tripathy (Asst. Law Officer, B.D.A.) PRESENT: THE HON’BLE SHRI JUSTICE INDRAJIT MAHANTY & THE HON’BLE SHRI JUSTICE RAGHUBIR DASH. Date of Hearing: 07.10.2013 Date of Judgment: 10.10.2013 ________________________________________________________________________ I.Mahanty, J.The present writ application has been filed by the petitioner challenging the legality of office order dated 10.9.2008 issued by the Bhubaneswar Development Authority-Opposite Party No.1 (in short the ‘B.D.A.’) in cancelling the letter of allotment dated 18.2.2000, wherein, Plot No.72 (A), measuring 1529.40 sq. ft. had been allotted to the 2 petitioner at District Centre Self Financing Commercial Complex, Chandrashekharpur, Bhubaneswar.
2. It appears that the B.D.A. had published an advertisement inviting applications for allotment of approximately 144 constructed shop-cum-residence units, 96 constructed Pindis, 290 Commercial Plots of different sizes for the purpose like clinic, petrol pump, restaurant, nursery schools, hotel etc. The objective of B.D.A. was to create selffinancing commercial units at Chandrashekharpur area of Bhubaneswar town for an area of more than 35 acres and the petitioner had applied for allotment of a commercial plot of 3500 sq.ft. under the Self Financing Commercial Complex at Chandrashekharpur, Bhubaneswar.
3. The petitioner made the necessary application and the B.D.A. vide its letter dated 29.12.1999 informed the petitioner that it had decided to allot the vacant plots through a Lottery, scheduled to be held on 3.1.2000 at 11.00 A.M. Accordingly, the petitioner attended the said lottery on the said due date and time and after he was successful in the said lottery, he was allotted with a Plot bearing No.-72(A), measuring 1529.40 sq.ft. subject to payment of Rs.1,07,058/- after receiving the intimation of his success in the lottery. Accordingly, letter of allotment was issued vide letter dated 18.2.2000, pursuant to which the petitioner deposited the demanded amount within the time stipulated. Since possession of the plot was No.handed over to the petitioner, he made a representation to the B.D.A. on 1.8.2002 seeking delivery of possession. Thereafter, it appears that several communications were made by the 3 petitioner and ultimately on 5.6.2004, the opposite party-B.D.A. purportedly handed over physical possession of the plot in question to the petitioner under Possession Certificate dated 9.6.2004 indicating delivery of possession of the plot on 5.6.2004. But, in spite of such Possession Certificate granted by the B.D.A., it appears that the petitioner while constructing the boundary wall of the plot, was prevented from doing so by one individual, namely, Janakar Sahu of village Gadakana claiming that on the very plot, the B.D.A. has no right/ title or interest and claimed that the Records of Right stands in his name. This development was brought to the notice of the B.D.A. by the petitioner. The B.D.A. took no steps whatsoever in spite of various representations requesting the B.D.A. to settle the matter and ultimately, by letter dated 2.6.2008, the Allotment Officer of the B.D.A. informed the petitioner “that Plot No.72(A) was carved out wrongly in MouzaGadakana instead of Chandrashekharpur District Centre Scheme area and therefore, it is difficult on their part to allot the petitioner a commercial plot as per the agreed terms and requesting the petitioner to submit the original challan to take refund of the deposited amount.”
. The petitioner, on receipt of the letter dated 2.6.2008, requested the B.D.A. under cover of his letter dated 28.6.2008 to allot an alternative/similar plot to the petitioner, in view of the admitted default by the B.D.A. itself. It appears that there was no response to the petitioner’s request and by office order dated 10.9.2008, allotment of the plot in question made by 4 letter dated 18.2.2000 was cancelled and it was directed that the amount deposited by the petitioner shall be refunded in favour of the petitioner. Thereafter, vide letter dated 25.9.2008, the B.D.A. in enclosing the cheque of the Oriental Bank of Commerce dated 23.9.2008 for an amount of Rs.1,07,058/- intimated that the aforesaid amount relates to refund of the deposited amount against which the plot had been allotted eight years ago.
4. In Paragraph-13 of the writ application, it is averred that though the petitioner has received the cheque, yet he did No.encash the same and sought to challenge the illegal action of B.D.A. by filing the present writ application.
5. The petitioner who appears in person, submits that the opposite parties having allotted the plot in question in the year 2000, have sought to cancel the same eight years thereafter but without giving any opportunity to him and there being no fault on his part. The order of allotment culminated in a completed contract by the petitioner depositing the demanded amount and the petitioner purportedly being given possession of the disputed plot in question. Since the B.D.A. later denied that it had no title to the property allotted to the petitioner, it was the bounden duty of the B.D.A. to offer the petitioner with the reasonable alternative plot, rather than to deprive the petitioner from any opportunity to construct a house during his life time. Accordingly, the petitioner submits that the order of cancellation dated 10.9.2008 under Annexure-12 may be quashed and the opposite party-B.D.A. may be 5 directed to allot a plot to him either at Chandrashekharpur Bhubaneswar or at any similar location in lieu of cancellation of plot in his favour.
6. In the counter affidavit filed by the B.D.A., the facts as enumerated hereinabove, are No.denied and in fact, in Paragraph-8.3 of the said affidavit, it is admitted that in the present case, the plots have been wrongly carved out under Mouza-Chandrasekharpur which were actually falling under Mouza-Gadakan beyond the allotted area of the G.A. Department, Govt. of Odisha to the B.D.A. It appears from the counter affidavit that certain attempts have been made by the B.D.A. to call Mr.Janakar Sahu who claimed ownership over the said plot to settle the dispute but, it appears that no such settlement was reached and consequently, the B.D.A. was compelled to cancel the allotment made in favour of the petitioner and to attempt to refund the deposited amount in his favour.
7. It appears from the records of this case that in course of hearing, the B.D.A. had filed a further affidavit in compliance of this Court’s order dated 23.8.2010 and 4.9.2010. In such affidavits, the B.D.A. has stated that even though the advertisement had been made for auction sale of certain residential plots under “Prachi Enclave Plotted Development Scheme”. and eight number of plots under the said scheme were lying vacant for allotment through auction, it is stated that the auction notice for allotment of the aforesaid plots were injuncted on account of interim order passed in W.P.(C) No.1495 of 2011. 6 8. It would be material here to state that W.P.(C) No.1495 of 2011 has come to be dismissed by this Court vide separate judgment delivered today and consequently, the interim orders no longer remain in operation.
9. The B.D.A. has also filed a further affidavit dated 23.9.2013 and while admitting the pleadings made by the writ petitioner submitted in Paragraph-7 which is as follows: “ xx xx xx However, the allotment of any residential plot under Prachi Enclave Plotted Development Scheme measuring area 1529.40 sq. ft. can be considered for allotment in favour of the petitioner, which will require a change in lay-out plan of the aforesaid Scheme, which can only be done after a special resolution to be made by the ‘BDA Authority’, which would require a reasonable time, as the Authority consists of a group of indivisuals. The next meeting of the Authority is tentatively scheduled to be held in the month of October 2013 xx xx xx.”
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10. It is well settled by the judgment of this Court in the case of Dusmanta Kishore Swain v. Cuttack Developoment Authority & others, reported in 2013 (1) ILR-CUT-73, that it is the duty of all development authorities to ensure that the land allotted to applicants are free from litigation and consequent failure to discharge such duty entitles the allottee for allotment of an alternate plot.
11. In the light of the circumstances as noted hereinabove, we are of the considered view that in the present case, no default at all was caused by the petitioner. He had made an application for a commercial plot in question and since the petitioner had been allotted with a 7 commercial plot by the B.D.A. which he had obtained through lottery conducted by the B.D.A., it was the duty of the B.D.A. to ensure that the land allotted to the petitioner is free from litigation. Therefore, the B.D.A. having failed to ensure that the land allotted to the petitioner is free from litigation, consequently, responsibility is being cast on the B.D.A. to offer an alternative plot to the petitioner. As noted in Paragraph-7 hereinabove, it appears therefrom that the B.D.A. is willing to offer a residential plot consisting of an area measuring 1529.40 sq. ft. under Prachi Enclave Plotted Development Scheme subject to the procedure noted hereinabove. It is also admitted by the B.D.A. that pursuant to the advertisement made for allotment of land under Prachi Enclave Plotted Development Scheme, no bids were in fact, received purportedly on account of interim order passed in W.P.(C) No1495 of 2011. In the present circumstances, since the aforesaid writ application stands dismissed by this Court vide judgment delivered today, no such impediment will exist any further.
12. In course of submission, the petitioner in person submitted that the B.D.A. may consider allotting Plot No.249 under Prachi Enclave Plotted Development Scheme at Chandrashekharpur in his favour and though the area of plot measures 3019 sq. ft., the petitioner is willing to pay for the additional area measuring 1489.60 sq.ft. (at the offset price fixed by the B.D.A.) in the advertisement under Annexure-14 to Misc. Case No.8253 of 2012. We see no legal impediment in issuing such direction. 8 13. Accordingly, we direct the opposite party-B.D.A. to allot Plot No.249 having an area measuring 3019 sq.ft. at Prachi Enclave plotted Development Scheme, Chandrashekharpur in favour of the petitioner. Since the original plot allotted to the petitioner was 1529.40 sq.ft., an additional demand shall be raised by the B.D.A. in respect of the excess land i.e. 1489.60 sq.ft., at the offset price fixed in the tender notice, within a period of two weeks from the date of receipt of copy of this judgment and on the petitioner depositing such amount, fresh allotment letter for the said plot and possession thereof may be handed over to the petitioner forthwith along with the necessary registration of land in his favour. It is further made clear that since we have directed allotment of the entire Plot No.249 in favour of the petitioner, consequently, there is no requirement of change of layout plan of the Scheme concerned.
14. With the aforesaid observations and directions, the writ application is allowed. …………………… I.Mahanty, J.Raghubir Dash, J.I agree. ……………………… Raghubir Dash, J.ORISSA HIGH COURT; CUTTACK 10th October, 2013/ RKS.