Jabalpur Development Authority vs Deepak Sharma
2021 Latest Caselaw 13 MP

                                           1

           HIGH COURT OF MADHYA PRADESH, JABALPUR

                                  W.A. No.655/2020

                       Jabalpur Development Authority and another

                                       -Versus-

                                Deepak Sharma and others
----------------------------------------------------------------------------------------
CORAM:-

     Hon'ble Shri Justice Mohammad. Rafiq, Chief Justice.
      Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
    Whether approved for reporting ? Yes/Not.
----------------------------------------------------------------------------------------
     Shri Siddharth Sharma, Advocate for the appellants.
     Shri Ashish Shroti, Advocate for the respondent No.1

Whether approved for                Yes.
reporting?
Law laid down                        Even if the court or Tribunal direct for
                                     consideration of representations relating to
                                     a stale claim or dead grievance , it does
                                     not give rise to a fresh cause of action.
                                     Similarly, a mere           submission of
                                     representation to the competent authority
                                     does not arrest time.
 Significant                         10, 11 & 12.
 paragraph Nos.
----------------------------------------------------------------------------------------

                                 JUDGMENT

(Jabalpur: 08-02-2021)

Per: V.K.Shukla, J.

The present intra court appeal is filed under Section 2(1) of M.P.

Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005,

being aggrieved by the judgment dated 22-01-2020 passed in W.P.

No.9909/2018 (Deepak Sharma Vs. Jabalpur Development Authority and

another) passed by the learned Single Judge, whereby the impugned

orders dated 04-08-2012 and 31-03-2018 have been quashed. It has been

further directed that the allotment order of plot in question shall be made

in favour of the writ petitioner and the possession of the said plot be

also handed over to him after completing all requisite formalities and

also taking difference amount from him as per the rate quoted by

him at the time of submitting his offer.

2. The facts adumbrated in nutshell are that respondent no.1 Deepak

Sharma filed a writ petition under Article 226 of the Constitution of India

praying for quashment of orders dated 04-08-2012 and 31-03-2018

withdrawing the earlier resolution, by which the plot was decided to be

allotted to the petitioner therein, as well as the order rejecting the

representation of the petitioner. The facts further reveal that an

advertisement was issued on 01-03-2012 inviting offers in respect of

Plot No.936-B, area 4675 sq.ft. situated at Scheme No.6, Sanjeevni

Nagar, Jabalpur. The respondent no.1 submitted his offer at the rate of

Rs.827/- per sq.ft. Two other applicants also submitted offers at a lower

rate i.e.Rs.818/- and 821/- per sq.ft. In pursuance to the offer made by

the respondent no.1, the matter was taken up in the meeting of Board of

Directors on 15-06-2012 and it was resolved to reserve the plot for

allotment in favour of the respondent no.1. Large number of complaints

were received in respect of financial irregularities in allotting the plot

to the respondent no.1 at a throwaway price without giving wide

publicity to the notice inviting offer. It is stated that the notice inviting

tender was not published in widely circulated news paper i.e. Dainik

Bhaskar and Nai Duniya etc. The complaints were scrutinized and it

was decided that the earlier resolution dated 15-06-2012 made in favour

of the respondent no.1 be recalled and the matter be placed before the

Allotment Committee afresh. After taking the decision recalling the

reservation made in favour of the petitioner, the security amount

deposited by the respondent no.1 was returned on 04-08-2012. The

respondent no.1 thereafter filed a writ petition i.e. W.P. No.15148/2012.

However, the said writ petition was withdrawn on 10-05-2013 with a

liberty to file a fresh writ petition. According to the appellant for almost

4 years, no writ petition was preferred and the appellant-Jabalpur

Development Authority issued a fresh advertisement for the plot in

question in the year 2018. The respondent no.1 in the year, 2018

preferred another writ petition i.e. W.P. No.5095/2018 and the same was

disposed of by an order dated 07-03-2018 with a direction to the

respondents to decide the petitioner's representation within a period of

60 days. The petitioner's representation was rejected and thereafter the

third petition was preferred i.e. W.P. No.9909/2018, which has been

allowed by the impugned order.

3. Learned counsel for the appellant submitted that no right in

favour of the respondent no.1 had accrued because no letter of

allotment was issued in favour of the respondent no.1 at any point of

time. Merely because a decision was taken to allot the plot in favour

of the respondent no.1, it would not mean that right was created in

favour of the respondent no.1. It is further urged that the Board of

Directors, being the final authority is certainly free to take final decision

in the matter. Since no right was crystallized in favour of the respondent

no.1, therefore, in the year 2012 itself, the security deposit was returned

to the respondent no.1. It has also been submitted that the amount

offered by the respondent no.1 was about Rs.38,00,000/- whereas

pursuant to the subsequent advertisement issued in the year 2018, the

amount offered in respect of the same plot was about Rs.1.00 crore. The

plot was allotted to Poonam Soni and Kapil Soni vide allotment letter

dated 10-04-2018, however the subsequent allottees were not made

parties in the writ petition.

4. Learned counsel for the appellant argued that there was a delay in

filing the petition and, therefore, no relief could have been granted by

the learned Single Judge. The question which has cropped up for

consideration is whether there was a delay in filing the instant writ

petition.

5. Learned counsel for the respondent-writ petitioner submitted that

the Board cancelled the allotment of the plot on 04-08-2012. The

petitioner immediately filed a writ petition i.e. W.P.No.15148/2012. An

order of status quo was passed by the learned Single Judge on 12-09-

2012. The petitioner has simultaneously approached the State

Government . He was assured that necessary directions would be given

to the JDA in the matter and therefore, the petition was withdrawn by

filing an application for withdrawal of the petition on 30-04-2013. The

petition was dismissed as withdrawn granting liberty to the petitioner to

file a fresh writ petition on 10-05-2013. On 31-07-2015, the Government

directed the JDA to consider the matter. The petitioner made

representations to the JDA on 09-12-2015, 09-12-2016 and 05-06-2017.

According to him, no reply was given one way or the other and on the

contrary, the JDA re-advertised the auction of the plot. The petitioner

filed second petition W.P. No.5095/2018 on 27-04-2018. The said

petition was disposed of to reconsider the matter, as the JDA also agreed

to reconsider the matter and therefore, now the appellant-JDA is stopped

from raising the objection of the delay.

6. It is submitted that when the Government had directed the

authority to consider the case by order dated 31-07-2015, the authority

of its own should have considered the matter and passed appropriate

orders. Even though, the representation was made soon after the

Government passed the order, followed by successive representations,

but the appellant authority did not pass any order one way or the other.

The petitioner then filed the writ petition as submitted above. It is urged

that there is no such delay to dis-entitle him from the relief sought.

Secondly, it is the inaction on the part of the appellant-JDA, which is

responsible for the delay, if any. In support of his submissions, he

placed reliance on the judgment passed in the case of Raghubir Singh

Vs. Union of India, 2003(5) M.P.L.J. 469.

7. In rebuttal to the aforesaid submissions, learned counsel for the

appellant submitted that there was no assurance given by the appellant

or the State Government for reconsideration of the case of the petitioner

and the reasons best known to the petitioner, he withdrew the writ

petition on 10-05-2013 with a liberty to file a fresh petition. For almost

4 years, no writ petition was preferred and the appellant-JDA issued a

fresh advertisement for the plot in question in the year 2018. Only when

the fresh advertisement for the plot in question was issued in the year

2018, then the petitioner preferred another writ petition W.P.

No.5095/2018 and the same was disposed of by an order dated 07-03-

2018 with a direction to the respondents to decide the petitioner's

representation within a period of 60 days. Thereafter, the petitioner's

representation was rejected and the third petition W.P. No.9909/2018

was preferred.

8. Upon perusal of the records, we do not find that there was any

assurance given to the petitioner for reconsideration of his allotment

after having been cancelled by the Board of Directors. In the present

case, no letter of allotment was issued in favour of the respondent

no.1 at any point of time. Merely because a decision was taken to allot

the plot in favour of the respondent no.1, it would not mean that right

was created in favour of the respondent no.1, the Board of Directors,

being the final authority has taken a final decision in the matter not to

allot the plot to the writ petitioner considering the complaints that wide

publicity was not given to the previous auction and the same was decided

to settle the same in favour of writ petitioner on throwaway price. Further

no right was crystallized in favour of the respondent no.1, therefore, in

the year 2012 itself, the security deposit was returned to the respondent

no.1. The first petition was filed in the year 2012 challenging the order

dated 04-08-2012 which was registered as W.P. No. 15148/2012,

however, the said writ petition was withdrawn by the respondent no.1 on

10-05-2013 and thereafter the petitioner did not take any step in the

matter for a period of almost 4 years. Mere submission of the

representations would not grant any benefit to the respondent no.1

specially when his rights were not crystallized and no right of

allotment had accrued in his favour. Further, no assurance was given

for allotment by the appellant. In the year 2018 by filing second writ

petition W.P. No.5095/2018, challenged the action of the respondents of

issuance of the fresh tender and the said petition was disposed of

directing the appellant to decide the representation of the respondents.

This itself, would not condone the delay and laches on the part of the

petitioner as for a period of 4 years, the petitioner did not file any fresh

writ petition after withdrawal of the first petition on 10-05-2013.

9. The plot in question has been subjected to disposal by issuing

fresh NIT. The petitioner did not participate in the fresh tender in

pursuant to the subsequent advertisement issued in the year 2018. The

amount offered in respect of the same plot is about Rs. 1.00 crore as

against the offer of the respondent no.1 about Rs. 38,00,000/-. The plot

has already been allotted to one Poonam Soni and Kapil Soni, the

intervenors vide allotment letter dated 10-04-2018. Merely because the

petitioner had participated in respect of NIT of the year 2012 and

decision was taken to allot the plot in question to him would not confer

any right to him specially when the Board of Directors had taken a

decision to cancel the said decision in the year 2012 itself for the reasons

stated earlier. The security amount deposited by the respondent no.1 was

also returned to him in the year 2012 itself. The appellant has received

subsequent offer more than three times than the offer of the petitioner.

The petitioner has been in slumber for a period of five years from the

year 2013 to the year 2018. The allotment has already been made to the

subsequent allottees and the rights have accrued in their favour. The

offer of the subsequent allottees is about Rs. 1.00 crore in comparison

to the offer of the respondent no.1 of about Rs. 38,00,000/-. Merely

because some representations were given, the representations itself

would not constitute the reason for condoning the delay and laches.

From the facts, it has been established that no letter of allotment was

issued in favour of the respondent no.1 at any point of time. Merely

because a decision was taken to allot the plot in favour of the

respondent no.1 which has been subsequently withdrawn by the Board of

Directors would not mean that any right was created in favour of the

respondent no.1. The Board of Directors being the final authority was

free to take final decision in the matter and no right was crystallized in

favour of the respondent no.1 and therefore, we do not find any illegality

in the order/decision of the respondent dated 04-08-2012 and rejecting

the representation dated 31-03-2018. Apparently, the petition suffers

from delay and laches as the decision to cancel the offer of the petitioner

was taken on 04-08-2012. Because of the delay and laches on the part of

the respondent, the price of the plot has already gone up three times than

the offer made by the respondent no.1. The subsequent offers have been

accepted and the plots have been allotted to the intervenors.

10. In the case of NDMC Vs. Pan Singh 2007 9 SCC 278, the Apex

Court has opined that though there is no period of limitation providing

for filing a writ petition under Article 226 of the Constitution of India,

yet ordinarily a writ petition should be filed within a reasonable time.

11. In C. Jacob Vs. Director of Geology and Mining (2008) 10 SCC

115, the Apex Court while dealing with the concept of representations

and the directions issued by the Court or Tribunal to consider the

representations and the challenge to the said rejection thereafter. In that

context, the court has expressed thus: -

"Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without

examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim."

12. In the case of Union of India Vs. M.K.Sarkar (2010)2 SCC 59

this Court after referring to C. Jacob (supra) has ruled that :-

"When a belated representation in regard to a "stale" or "dead" issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches."

13. In Karnataka Power Corpn. Ltd. through its Chairman &

Managing Director v. K. Thangappan and another (2006) 4 SCC 322,

the Court took note of the factual position and laid down that when

nearly for two decades the respondent-workmen therein had remained

silent mere making of representations could not justify a belated

approach.

14. In State of Orissa v. Pyarimohan Samantaray (1977) 3 SCC

396 it has been opined that making of repeated representations is not a

satisfactory explanation of delay. The said principle was reiterated in

State of Orissa v. Arun Kumar Patnaik (1976) 3 SCC 579.

15. From the aforesaid authorities it is clear as crystal that even if the

court or Tribunal directs for consideration of representations relating to a

stale claim or dead grievance, it does not give rise to a fresh cause of

action. Similarly, a mere submission of representation to the competent

authority does not arrest time.

16. The judgments relied by the learned counsel for the respondent

would not render any assistance to the facts of the present case as in the

present case no right had accrued in favour of the petitioner.

17. In view of the aforesaid, we find that the learned Single Judge

has erred while setting aside the decision of the appellant and the

allotment made in favour of the subsequent allottees and directing for

handing over the possession of the plot in question after completing all

requisite formalities to the writ petitioner.

18. Accordingly the writ appeal is allowed and the writ petition is

dismissed.

  ( MOHAMMAD RAFIQ) )                           (VIJAY KUMAR SHUKLA)
    CHIEF JUSTICE                                   JUDGE

hsp.

             Digitally signed
             by HAR SAHAY
             PATERIYA
             Date: 2021.02.09
             10:35:24 +05'30'