The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.26498 of 2022 Dr. Sudhansu Sarangi …. Petitioner Mr. Subir Palit, Senior Advocate -Versus- State of Odisha and Another Opposite Parties Mr. P.K. Rout, AGA for O.P. No.1 Mr. D. Mohapatra, Advocate for O.P. No.2 …. CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:25.09.2023 1. Instant writ petition is filed by the petitioner assailing the impugned order dated 21st September, 2022 vide Annexure-8 and for a direction to the opposite parties to accommodate the structural changes with minor modification in respect of the core house allotted to him corresponding to the building plan of House No.11, Kanan Vihar, Phase-I, Patia, Bhubaneswar on the grounds stated. 2. The impugned action of the opposite parties in denying the modification vis-a-vis the interior of the core house has been questioned with the rejection of the representation as arbitrary and illegal since it was requested while keeping the total plinth area and external elevation intact. In fact, the petitioner had earlier knocked the doors of this Court in W.P.(C) No. 16488 of 2022 which was disposed of on 18th July, 2022 with a direction to the opposite parties and particularly, opposite party No.2 to consider modification of the proposed plan on the extra costs being borne by him and to take a decision on the same. Pursuant to the aforesaid order, the representation of the petitioner was W.P.(C) No.26498 of 2022 Page 1 of 10 disposed of on 21st September, 2022 vide Annexure-8 with an intimation to him that changing of column position in the allotted house without altering external layout or plinth area is difficult to be implemented in view of the common approved plan for all the 11 HIG houses and furthermore, as per the Scheme, advertisement and brochure conditions, allotment letter was already issued and hence, alteration in the plan at such stage is to create precedence. As it is made to understand, the request of the petitioner for the necessary alteration even on payment of additional costs for modification was not accepted owing to the common layout and design adopted for the HIG houses as per the approved plan. The aforesaid decision of the authority concerned
Legal Reasoning
has been challenged by the petitioner on the grounds inter alia that the rejection of the request would subject him to immense inconvenience, hardship and financial loss, if ultimately, the entire structure is demolished and rebuilt as per the proposed plan.
Legal Reasoning
3. Heard Mr. Palit, learned Senior Advocate for the petitioner and Mr. Mohapatra, learned counsel for opposite party No.2 besides Mr. Rout, learned AGA for opposite party No.1. 4. Mr. Palit, learned Senior Advocate for the petitioner would submit that the petitioner in compliance of the terms and conditions of the advertisement deposited the entire of the consideration, which is the price of the core house and also an additional sum while exercising an option for a corner plot and after the online lottery, as he was one among the 11 winners, was allotted the core house vide letter dated 11th June, 2021 and since allotment of a choice plot could not materialize, extra amount received from him was refunded. It is further submitted that after the allotment and on verification of the design of the core house, the petitioner noticed that its interior design needs minor modification, such as, moving of column and adjustment of beam to cater the specific requirements like installation of a lift etc. and W.P.(C) No.26498 of 2022 Page 2 of 10 carving out proper living area in the ground floor. Mr. Palit further submits that the petitioner’s mother is old and ailing and therefore, it is necessary that a lift to be installed and the changes so requested are slight modification internally which do not alter the exterior or plinth area. It is contended that once the construction is concluded, it would be very difficult to carry out the modification unless completed columns are dismantled. It is also contended that if the stand of opposite No.2 is accepted that the changes may be brought about after taking possession of the core house, as according to Mr. Palit, at that stage, the only way would be to bring down the entire structure and therefore, rejection of the request on any such ground is irrational and absurd. It is claimed that the size of the plot permits construction of the two storied building and the modification proposed by the petitioner is well within the limits lawfully allowed keeping in mind future expansion. Mr. Palit also submits that since the petitioner’s request was not accepted, a representation under Annexure-2 was submitted to refund the construction cost so that he would be able to undertake the same on his own with minor modification to be carried out as to the interior, which was also turned down on the ground that it violates the terms and conditions of the brochure and advertisement. According to Mr. Palit, learned Senior Advocate, the request of the petitioner was rejected principally on the ground that an approved plan is in place and any such alteration of the same as proposed would create a precedence and is also unworkable despite proper demonstration well supported by professional recommendation which was not duly examined by opposite party No.2 notwithstanding the fact that the petitioner was ready and prepared to bear the additional cost for such modification. While advancing such an argument in favour of the changes to be necessary before any such construction is commenced, Mr. Palit refers to Sections 19 and 23 of Orissa Housing Board Act, 1968 W.P.(C) No.26498 of 2022 Page 3 of 10 (hereinafter referred to as ‘the OHB Act’) to state that the programme as sanctioned by the State Government may even be varied at any stage. In other words, Mr. Palit would contend that there is no bar under the OHB Act to allow any such minor modification or changes to the interior of the core house, all the more when, the programme which is related to the annual housing prepared by the Board permits variation as per the Section 23 of the OHB Act. 5. On the contrary, Mr. Mohapatra, learned counsel for opposite party No.2 referring to the counter affidavit submits that the construction of the HIG houses is over left out plots in the Social Housing Scheme for which opposite party No.2 invited applications and out of 24 applicants, the petitioner was one among them picked up through lottery for the allotment of a plot. It is contended that the construction of the core houses is undertaken with due permission of the competent authority as per the structural design specifically referred to in the brochure having been cleared by the Board. It is submitted by Mr. Mohapatra that the brochure conditions do not specify any such provision for changing the structure and design or interior of the allotted core house and in so far as the request of the petitioner for modification pursuant to the order in W.P.(C) No. 16488 of 2022 is concerned, it was declined on just ground. According to Mr. Mohapatra, opposite party No.2 floated the Scheme and the petitioner was one of the applicants and he was allotted the core house as per the conditions of the brochure which was well within his knowledge and therefore, any such modification in the design thereafter by changing the columns, adjustment of beam etc. could not have been permitted. It is stated that the design of the core houses have been made keeping in view various aspects, inasmuch as, the contractor is required to execute the work in consonance with the agreement in place and hence, any such W.P.(C) No.26498 of 2022 Page 4 of 10 request for modification sans merit and thus, rightly rejected. It is contended that the petitioner cannot take any such ground as to unreasonableness when he was fully aware of the Scheme and for having accepted all the conditions and if the plan failed to meet the specific requirements now demanded, he would not have applied for the allotment. As per Mr. Mohapatra, the proposed modification is as such not permissible and considering all such factors, the representation was rejected vide Annexure-8 and hence, the impugned decision is absolutely justified in the facts and circumstances of the case. 6. From Annexure-1, it is revealed that the petitioner was allotted the core house under the Scheme as one of the allottees with the deposit of the entire sale price. Since the construction work had not commenced despite the allotment, the petitioner requested opposite party No.2 to refund the construction cost only and to permit him to accomplish it on his own as made to appear from Annexure-2. Thereafter, in the month of August, 2021, the petitioner was intimated vide Annexure-3 that handing over the plot instead of a core house could not be considered since it would violate the terms and conditions of the brochure and advertisement and furthermore, requested to deposit the dues payable within a month. In the meanwhile, the modification of the building plan was moved under Annexure-4 with a request to change the location of column to create a larger living space in the ground floor of the core house and to provide an internal staircase and provision of a lift while keeping the floor area and exterior intact. Such request was finally rejected vide Annexure-8 on the grounds discussed hereinbefore. 7. There is no denial to the fact that the allotment was made under an HIG Scheme. For the said purpose, an advertisement was published. According to the advertisement and as per the Scheme, the construction of the core houses has to be in the lines W.P.(C) No.26498 of 2022 Page 5 of 10 of the specifications mentioned therein. The petitioner in order to accommodate own requirements submitted the modified plan along with a comparative cost estimate of both the plans having been prepared by a professional of technical expertise in confirmity with the OPWD Code. The details of the proposed plan and comparative cost estimate so submitted by the petitioner are at Annexures-5 and 6 with the rates as admissible under said Code, a copy of which is at Annexure-7 and according to Mr. Palit, learned Senior Advocate, opposite party No.2 did not respond to it properly rather rejected the request which is quite unreasonable and unjustified. The question is, whether, any such acceptance of proposed modification in the structural design is permissible? A copy of brochure is made available for perusal of the Court as per which opposite party No.2 proposed to construct HIG core houses stating therein the details of the infrastructure and the manner in which the allotment shall be made with the cost price etc. The other details are also mentioned in the brochure in respect of the HIG Core Houses Scheme, which is in respect of outright purchase of the plots, etc. In so far as the OHB Act is concerned, the Board shall have to prepare and submit a programme every year to the State Government stating therein the prescribed particulars of the Housing Schemes which it proposes to execute either in part or whole with other details as to the execution and Mr. Palit, learned Senior Advocate referring to Section 19 read with Section 23 would contend that there is no restriction of any kind to vary any such programme as sanctioned by the State Government, rather, the same is permissible subject to the proviso clause and the conditions being fulfilled. The purpose of the argument is to satisfy the Court that the proposed modification is not impermissible when variation to the entire Scheme is allowed in view of Section 23 of the OHB Act even after the sanction for any programme is received from the State Government in a particular year. In so far as the above provisions W.P.(C) No.26498 of 2022 Page 6 of 10 are concerned, it is in relation to a programme prepared by the Board in respect of Housing Schemes for a specified year and variation thereof which is permissible under the OHB Act. So to say, Section 23 of the OHB Act is in relation to a housing programme as a whole with the authority for the Board to go for any variation subject to conditions. In so far as the case of the petitioner is concerned, it is individual based on specific requirements which has been denied by opposite party No.2. In fact, no any provision of the OHB Act has been drawn to the notice of the Court by Mr. Palit, learned Senior Advocate which relates to any such request for modification which the Board can accommodate on individual request being received by it. But the argument is that when the Board has the authority to consider the variation of a programme, which it can do subject to Section 23 of the OHB Act, the proposed modification of the building plan by the petitioner could also be entertained when it is absolutely necessary to accommodate the specific requirements with minor changes in the location of column with slight modification in the structural design without alteration of the external layout or plinth area. As earlier mentioned, the modified plan and also the comparative cost estimate had been submitted for a decision by opposite party No.2 while demanding the necessary changes in the ground floor of the core house allotted to the petitioner. If Annexure-8 is read and understood, the request was rejected by opposite party No.2 on the ground that the modification is difficult to be implemented more so in view of the common approved plan and that too when, the allotment letter was already issued and any such alteration in the plan would create precedence. Is it that in view of the common approved plan, the modification, which has been sought for by the petitioner was disallowed? It is also apprehended by opposite party No.2 that in case, the proposed change in the approved plan of the core house is allowed, similar requests might be received in future. But, in W.P.(C) No.26498 of 2022 Page 7 of 10 absence of any such bar or clear restriction with a specific provision in the OHB Act having not been brought to the notice of the Court either, a question is bound to arise as to why the proposed amendment which is again based on specific requirements should not be permitted. It is certainly quite absurd to suggest that the petitioner could bring the modification later on once the construction of the core house is completed and the same is handed over to him. By such means, after the construction is concluded, if at all the suggestion of opposite party No.2 is accepted, it would result in substantial loss to the petitioner since the entire structure of the core house building or at least substantial part of it would have to be virtually pulled down. When the construction of the core house is not yet commenced, it would rather be a wise option to go for any such modification. To deny the same without considering the plea in its proper perspective taking cognizance of all the factors and being apprehensive of the fact that it would create a precedence to follow is not only unreasonable but also quite unusual with a bizarre suggestion that the petitioner may incorporate the changes once the core house is fully constructed and handed over. 8. According to the Court, opposite party No.2 should be practical and responsive to the needs of the buyers and in the case at hand, it ought to have considered the request when a fresh structural design and estimate was prepared and submitted before it especially in absence of any bar or ouster of jurisdiction under the OPHB Act to deal with the same. The Court is also unaware of any such stipulation in the Scheme or conditions against modifications as nothing has been brought on record. It is rather impliedly assumed that the Scheme and the conditions do not allow such changes and modification even where the same is unlikely to alter the plinth area and exterior design again without looking into the proposed design and estimate. When such a W.P.(C) No.26498 of 2022 Page 8 of 10 situation is not envisaged anywhere in the OHB Act or brochure or advertisement, to assume that it is impermissible or not just workable in juxtaposition to the materials submitted by the petitioner is something which does not appeal to sense and logic. In fact, the said Act is conspicuously silent rather does not comprehend or cover and meet any such situation. Furthermore, Annexure-8 does not reveal as to whether the proposed change in the building plan or structural design is fraught with any risk or likely to cause any loss to them when the petitioner is inclined to bear the expenses for the additional change inclusive of the costs of the contractor, who has been issued with the work order. The Court is also made to understand that the modified plan was submitted and a discussion was held in presence of the technical experts from both the sides but surprisingly the request was rejected without its due consideration. When any such modification is sought for, opposite party No.2, in absence of clear indication or provision to the contrary should adopt flexibility to the extent necessary when the changes are suggested keeping in view the specific requirements. To bluntly deny any such proposed modification which is without altering the external layout or plinth area of the core house, the purpose being to create a better living space in the ground floor and to accommodate other facilities, in the humble view of the Court, is clearly unreasoned. At the cost of repetition, it is stated that to out rightly reject the changes at present and to suggest the petitioner to introduce the modification after the construction of the core house is completed is really absurd when nothing is shown on record that any such modification in respect of a Scheme house is expressly prohibited. When opposite party No.2 is unlikely to suffer any loss on account of any such internal changes simply for the reason that the building plan for the core house under the Scheme has been approved with the letter of allotment issued in favour of the petitioner, denial also stands to W.P.(C) No.26498 of 2022 Page 9 of 10 no reason when a modified plan estimate and comparative statements prepared and submitted to opposite party No.2 have not been discarded. As to the apprehension that permission in favour of the petitioner could result in precedence, it would rather be better to comprehend such distinct situations with proper scheme of things on paper. 9. Hence, it is ordered. 10. In the result, the writ petition stands allowed with the direction to opposite party No.2 to accommodate the request of the petitioner at the earliest preferably within three months from the date of receipt of a copy of this judgment, however, subject to the technical clearance vis-a-vis modifications proposed and additional expenses being borne by him. As a necessary corollary, the impugned order under Annexure-8 is hereby set aside in view of the discussion and observations made herein above. (R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 29-Sep-2023 11:58:58 W.P.(C) No.26498 of 2022 Page 10 of 10