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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.33083 of 2022 (In the matter of an application under Article 226 and 227 of the Constitution of India) Bichitrananda Dash -versus- State of Odisha, represented through its Secretary House and Urban Development, Bhubaneswar and others …. …. Petitioner Opposite Parties Appeared in this case:- For Petitioner For Opposite Parties : : Mr. S.P. Mishra, Sr. Advocate assisted by Mr. G.N. Parida, Advocate Mr. D. Mohapatra, Sr. Advocate assisted by Mr. P.K. Singh Deo and Mr. M. Pradhan, Advocate for O.P. Nos.2 and 3 Mr. D.K. Sahoo, Learned Additional Government Advocate for O.P. No.1 Appeared in this case:- CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 04.03.2025 / date of judgment : 03.04.2025 A.C. Behera, J. This writ petition under Articles 226 and 227 of the Constitution of India, 1950 has been filed by the petitioner praying for quashing letter dated 30.07.2022(Annexure-10) and letter dated 04.11.2022(Annexure- 15) issued by the Allotment Officer, Bhubaneswar Development Authority(Opposite Party No.3) and to direct the Opposite Parties to execute the lease-cum-sale deed in respect of the allotted HIG Duplex Core House in favour of the petitioner. 2. The case of the petitioner against the Opposite Parties is that, the petitioner is a retired employee of State Bank of India. The Bhubaneswar Development Authority(Opposite Party No.2, in short the “B.D.A.”) started construction of thirty numbers of HIG Duplex Core Houses, sixty- five numbers of HIG Core houses and seventy-two numbers of MIG Core Houses at Pokhariput and accordingly, B.D.A. floated advertisements for sale of those Core Houses at Pokhariput, which are closed to Airport area inviting applications fixing the cost of each Core House as Rs.9.45 lakhs. The petitioner applied for one HIG Duplex Core house and as per requirement, he(petitioner) initially deposited Rs.1,02,000/-(rupees one lakh two thousand) towards processing fees, which was non-refundable in nature. Thereafter, B.D.A. as per letter dated 20.05.1998 intimated petitioner that, he(petitioner) has been provisionally allotted with a HIG Duplex Core House at Pokhariput and directed him(petitioner) to deposit the rest amount of the said HIG Duplex Core House within three months and to furnish xerox copy of the challan deposit thereof for the proof of Page 2 of 12 such deposit. Accordingly, the petitioner deposited the rest amount, i.e., Rs.8,43, 000/- towards the cost of the HIG Duplex Core House. After such deposit, B.D.A.(Opposite Party No.2) called all the applicants including the petitioner, those were issued with allotment letter and accordingly a lottery was drawn on the date fixed for distribution of specific HIG Duplex Core Houses. In such lottery, the petitioner got HIG Duplex Core House No.29. At that time, some other HIG Duplex Core Houses were not allotted to anybody. One of such non-allotted HIG Duplex Core House was House No.21, which is situated at the corner of the cluster having its road in two sides and houses in other two sides. As, the HIG Duplex Core House No.21 was not allotted to anybody, for which, the petitioner interested to take that HIG Duplex Core House No.21 instead of HIG Duplex Core House 29, to which, B.D.A. agreed. As, the HIG Duplex Core House No.21 is at the corner having roads in its two sides, for which, the Opposite Party No.2 demanded extra cost, i.e., Rs.15,000/-(rupees fifteen thousand) for allotment of the same in favour of the petitioner. Accordingly, the petitioner deposited such extra cost, i.e., Rs.15,000/-(rupees fifteen thousand) and the Opposite Party No.1 allotted that HIG Duplex Core House No.21 in favour of the petitioner cancelling the allotment of HIG Duplex Core House No.29 and delivered possession of the said HIG Duplex Core House No.21 to the petitioner on 29.11.2000 through possession note. Page 3 of 12 After taking possession of HIG Duplex Core House No.21, it was noticed by the petitioner that, the quality of the constructions of that HIG Duplex Core House No.21 is not up to the standard, wherein electricity and water supply were not provided. So, the petitioner filed a consumer case vide C.D. Case No.174 of 2002 before the State Consumer Dispute Redressal Commission, Odisha against the B.D.A.(Opposite Party No.2) claiming compensation to the tune of Rs.5,45,000/-(rupees five lakhs forty-five thousand), to which, the B.D.A. contested. After hearing from both the sides, the State Consumer Dispute Redressal Commission, Odisha allowed that C.D. Case No.174 of 2002 of the petitioner in part as per order dated 28.09.2018 and directed B.D.A.(Opposite Party No.2) to pay Rs.1,55,000/-(rupees one lakh fifty-five thousand) and cost of Rs.5,000/-(rupees five thousand) towards litigation expenses to the
Legal Reasoning
petitioner. The B.D.A. challenged the said order 28.09.2018 passed in C.D. Case No.174 of 2002 by the State Consumer Dispute Redressal Commission, Odisha by filing an appeal vide F.A. No.618 of 2019 before the National Consumer Redressal Commission, which is sub-judice. 3. While the matter stood thus, B.D.A.(Opposite Party No.2) floated public notice on dated 15.11.2019 in a local daily inviting attention of the allottees of various housing schemes for submission of documents for registration of lease-cum-sale deeds in their favour in respect of their Page 4 of 12 respective allotted houses. In such notification, B.D.A. directed the allottees to submit relevant documents in the office of the B.D.A. in order to execute lease-cum-sale deeds and directed to deposit a sum of Rs.60,000/-(rupees sixty thousand) towards processing fees, although the same was not a condition in the brochure. So, without getting any way, the petitioner wrote a letter to B.D.A.(Opposite Party No.2) expressing his willingness to deposit all the required documents along with Rs.60,000/-(rupees sixty thousand) towards processing fees without prejudice to his rights. Surprisingly, as per letter dated 16.03.2022 vide Letter No.10046, B.D.A.(Opposite Party No.2) intimated petitioner stating that, as consumer appeal vide F.A. No.618 of 2019 is pending against him(petitioner) before the National Consumer Dispute Redressal Forum, New Delhi, for which, the execution of the lease-cum-sale deed in respect of the HIG Duplex Core House No.21 in his favour cannot be made, the same shall be subject to the final outcome of the said consumer appeal. Thereafter, B.D.A.(Opposite Party No.2) instructed the petitioner to submit the documents relating to the deposit of processing fees along with an undertaking in a shape of affidavit for execution of lease-cum- sale deed by the B.D.A. in his favour in respect of his allotted HIG Duplex Core House No.21. Page 5 of 12 In obedience to the said instruction of the B.D.A., the petitioner submitted documents relating to the deposit of processing fees, i.e., Rs.60,000/-(rupees sixty thousand) along with an undertaking for execution of lease-cum-sale deed of the HIG Duplex Core House No.21 in his favour. When, B.D.A. did not make any correspondence with the petitioner in spite of receiving Rs.60,000/-(rupees sixty thousand) for execution of lease-cum-sale deed in respect of the HIG Duplex Core House No.21 in favour of the petitioner, then, on dated 20.07.2022, the petitioner wrote a letter to the B.D.A.(Opposite Party No.2) to make arrangements for the registration of the lease-cum-sale deed in his favour. Thereafter, the petitioner received a letter from the Allotment Officer of the B.D.A.(Opposite Party No.3) vide Letter No.28882 dated 30.07.2022(Annexure-10) that, he(petitioner) is in possession of excess 300 sq.ft of land within the premises his allotted HIG Duplex Core House No.21 and directed petitioner to pay excess land cost for the same, which is equivalent to double of the bench mark value as on the date of allotment of that HIG Duplex Core House No.21, or else to vacate that HIG Duplex Core House No.21 within seven days. The said demand was made by the B.D.A. as per Clause-34 of B.D.A. land(disposal and allotment) Regulation, 2015. Page 6 of 12 4. In fact, the scheme, i.e., B.D.A. land(disposal and allotment) Regulation, 2015 came into force on the date of publication of the same in the Odisha Gazette, i.e., on 26.11.2015, which is much after the allotment of the HIG Duplex Core House No.21 in favour of the petitioner. As, the delivery of possession of the HIG Duplex Core House No.21 was made in favour of the petitioner in the year 2000 and as the said Regulation, 2015 has no retrospective operation, then, the question of making any encroachment of any B.D.A. land by the petitioner does not arise. For which, the aforesaid claim of the B.D.A. regarding possession of 300 sq.ft excess land by the petitioner inside his allotted HIG Duplex Core House No.21 after 22 years cannot be tenable in the eye of law. The petitioner had/has been possessing the allotted HIG Duplex Core House No.21 continuously as it is from the date of delivery of its possession, i.e., since 29.11.2000 without encroaching a single inch of land to any side thereof. Because, the possession thereof was delivered to the petitioner after constructions its four side boundary walls. For which, the claim of the B.D.A. about the possession of excess 300 sq.ft. land by the petitioner after 22 years cannot be acceptable under law. Because, B.D.A.(Opposite Party No.2) is estopped under law to claim the same after long 22 years. The said claim of the B.D.A. has already been defeated/extinguished by the efflux of time. Rather, the conduct of the B.D.A.(Opposite Party No.2) for non-execution of lease-cum-sale deed Page 7 of 12 in respect of the allotted HIG Duplex Core House No.21 in favour of the petitioner since the year 2000 till yet is bringing an adverse inference on the conduct of the B.D.A. Therefore, the letters dated 30.07.2022 and 04.11.2022 vide Annexures-10 and 15 respectively of the B.D.A.(Opposite Party No.2) demanding extra money for 300 sq.ft. land from the petitioner is bad under law. The same are liable to be quashed and direction is required to be given to the B.D.A. (Opposite Party No.2) to execute lease-cum-sale deed in respect of the allotted HIG Duplex Core House No.21 in favour of the petitioner. Therefore, without getting any way, the petitioner approached this Court by filing this writ petition against the Opposite Parties praying for quashing the said letters dated 30.07.2022 and 04.11.2022 vide Annexures-10 and 15 issued by the B.D.A. (Opposite Party No.2) to the petitioner and to direct the B.D.A. (Opposite Party No.2) to execute lease-cum-sale deed in respect of the HIG Duplex Core House No.21 in favour of the petitioner within a stipulated time and to refund the deposited money, i.e., Rs.60,000/-(rupees sixty thousand) to the petitioner. 5. The Opposite Party Nos.2 and 3, i.e., B.D.A. and Allotment Officer of the B.D.A. filed their joint counter affidavit challenging the case of the petitioner stating that, the HIG Duplex Core House No.21 is Page 8 of 12 under the possession of the petitioner on being handed over to him by the B.D.A. and the B.D.A. also does not dispute about the existence of the boundaries around the allotted HIG Duplex Core House No.21 in favour of the petitioner, but, the B.D.A. seriously disputes the allegation of the petitioner relating to the quality of constructions thereof. It is the specific plea of the B.D.A. that, before execution of lease- cum-sale deed, actual area of the allotted core house is required to be measured and the said measurement was not taken earlier by the B.D.A.(Opposite Party No.2) due to various technical difficulties. However, on measurement, it is found that, the petitioner is in possession of excess 300 sq.ft., then, the allotted area of HIG Duplex Core House No.21. For which, the petitioner is required to pay cost for the said excess land, which is double of the bench mark valuation, as per the B.D.A. land (disposal and allotment) Regulation, 2015. As the petitioner is in enjoyment of the HIG Duplex Core House No.21 with 300 sq.ft. excess area, then, for such 300 sq.ft. excess area, the petitioner is liable to pay the demanded extra amount. Therefore, the letters dated 04.11.2022 and 30.07.2022 have been issued lawfully by the B.D.A.(Opposite Party No.2) to the petitioner, for which, the same cannot be quashed. For non- payment of the demanded extra amount, the petitioner is liable to vacate the HIG Duplex Core House No.21 with its extra area in favour of the Page 9 of 12 B.D.A.(Opposite Party No.2). For which, the writ petition filed by the petitioner is liable to be dismissed 6. I have already heard from the learned senior counsel for the petitioner, learned Additional Government Advocate for the Opposite Party No.1 and the learned senior counsel for the Opposite Party Nos.2 and 3. 7. It is the undisputed case of the parties that, B.D.A.(Opposite Party No.2) had handed over possession of the HIG Duplex Core House No.21 to the petitioner on dated 29.11.2000 after receiving its required value/cost, i.e., Rs.9.45 lakhs from the petitioner having its four side boundary walls and since 29.11.2000, the petitioner had/has been possessing the same without encroaching any land beyond its boundary, i.e., other than, the delivered area(possession of which was delivered by the B.D.A. on dated 29.11.2000). 8. When, it is forthcoming from the affidavit and counter affidavit of the parties that, the petitioner had/has been possessing the HIG Duplex Core House No.21 since 29.11.2000 lawfully without encroaching any inch of land to any side exceeding its boundary walls and when possession thereof was delivered to the petitioner lawfully by the Opposite Party Nos.2 and 3 on dated 29.11.2000 without raising any question by the Opposite Party Nos.2 and 3 about the handing over Page 10 of 12 possession of any land more than the allotted area of HIG Duplex Core House No.21, then, at this juncture, the demand of money made by the Opposite Party Nos.2 and 3 from the petitioner as per letter dated 30.07.2022(Annexure-10) and letter dated 04.11.2022(Annexure-15) alleging possession of 300 sq.ft. excess land by the petitioner then, the allotted area of the said HIG Duplex Core House No.21 cannot be acceptable under law. For which, the Opposite Party Nos.2 and 3 are estopped under law to make such demand abruptly on the ground of non- raising of the same for long 22 years. Therefore, the letter dated 30.07.2022(Annexure-10) and letter dated 04.11.2022(Annexure-15) issued by the Opposite Party Nos.2 and 3 to the petitioner are liable to be quashed. 9. When, the petitioner has already paid the cost of the allotted house, i.e., HIG Duplex Core House No.21 to the Opposite Party Nos.2 and 3 since 20.05.1998 and when, the possession thereof was delivered by the Opposite Party No.2 to the petitioner on dated 29.11.2000, then at this juncture, it was the duty and obligation of the Opposite Party Nos.2 and 3 to execute the lease-cum-sale deed in respect of the said allotted HIG Duplex Core House No.21 in favour of the petitioner soon after delivery of possession thereof, but, since last 22 years, the Opposite Party No.2 has not executed such lease-cum-sale deed. For which, the prayer of the Page 11 of 12 petitioner to direct the Opposite Party No.2 for execution of lease-cum- sale deed in respect of his allotted HIG Duplex Core House No.21 cannot be disallowed. As such, there is merit in the writ petition filed by the petitioner. The same must succeed. 10.
Decision
In result, the writ petition filed by the writ petitioner is allowed. 11. The letter dated 30.07.2022(Annexure-10) and letter dated 04.11.2022(Annexure-15) issued by the Opposite Party Nos.2 and 3 to the petitioner are quashed (set aside). The Opposite Party Nos.2 and 3 are directed to execute lease-cum- sale deed of the allotted HIG Duplex Core House No.21 in favour of the petitioner completing all the formalities / paraphernalias thereof as per law as expeditiously as possible preferably within a period of three months hence. 12. Accordingly, this writ petition is disposed of finally. ( A.C. Behera ) Judge Orissa High Court, Cuttack The 3rd of April, 2025/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 03-Apr-2025 16:18:28 Page 12 of 12