Orissa High Court
Sarojkanta Mallick vs Bhubaneswar Development ... on 1 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No.9850 of 2012
In the matter of an application under Article 226 & 227 of the
Constitution of India.
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Sarojkanta Mallick ... Petitioner
Versus
Bhubaneswar Development Authority,
represented through its Vice-Chairman
& Ors. . ... Opposite Parties
For Petitioner ... M/s. U.C.Mishra, A.Mishra,
J.K.Mahapatra & P.K.Tripathy
For Opposite Parties M/s.D.Mahapatra,M.Mahapatra,
G.R.Mahapatra & A.Dash.
JUDGMENT
PRESENT:
THE HONOURABLE JUSTICE BISWANATH RATH
Date of Hearing: 19.04.2023 Date of Judgment: 01.05.2023
Biswanath Rath, J. This writ petition involves a challenge to the
impugned order dated 17.05.2022 passed by the Allotment
Officer-1, Bhubaneswar Development Authority (for short <the
B.D.A.=) under Annexure-17 with further request to any other
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allotment/possession of Plot No.108 of Prachi Enclave Plotted
Development Scheme in Chandrasekharpur, Bhubaneswar.
2. The writ petition was entertained on 28.05.2012 with an
interim order directing operation of the impugned order at
Annexure-17 shall be stayed till next date, which order appears
to be continuing as of now.
3. Factual background involving the case is that petitioner
while working as a Junior Assistant, came across of Kalinga
Nagar Plotted Development Scheme floated by the B.D.A. in
1991. A copy of brochure being obtained, petitioner had applied
for a plot and in the consideration process petitioner was also
allotted with Plot No.K-9-A/143 under Kalinga Nagar Plotted
Development Scheme from out of discretionary quota following
Clause-8(a)of the brochure vide Annexure-1. After allotment of
the plot in favour of the petitioner, on arrangement of a
purchaser petitioner applied for transfer of the said plot to one
Farhat Nizami and the transfer on consent of the Development
Authority was effected though a pre-possession transfer vide
office order dated 27.12.1999. The copy of the brochure and the
copy of the transfer order dated 27.12.1999 find place at
Annexures-1 and 2 respectively. It is while the matter stood
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thus, petitioner on the premises of having no
residential/commercial plot in Bhubaneswar area came to own
Plot No.262 under District Centre Commercial Plotted
Development Scheme at Chandrasekharpur of the B.D.A. again
by way of pre possession and change of allotment from a
previous allottee vide Office Order dated 29.06.2000. Petitioner
has a clear disclosure that he is in possession of a commercial
plot being allotted by the B.D.A. from 15.09.2001 It is on the
petitioner having no residential plot in Bhubaneswar and under
the premises there is no bar in applying for a residential plot
even if in possession of a commercial plot under any of the
scheme of the Development Authority, on 29.09.2000,
petitioner applied for allotment of a residential plot under
Prachi Enclave Plotted Development Scheme at
Chandrasekharpur. The brochure hereinabove finds place at
Annexure-4 to the writ petition. It is pleaded that the brochure
had a clear clause vide paragraph-9 (A) 5 at Annexure-4
containing 2% i.e. at least 3 plots under the scheme were
reserved for the staff of B.D.A. It is for the working of the
Prachi Enclave Plotted Development Scheme lottery procedure
was adopted considering a number of applicants available even
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under discretionary quota and the petitioner could have been
selected in the lottery process for allotment of a plot under the
scheme under the B.D.A. Staff Reservation Quota and in the
process, petitioner was served with letter of allotment vide
Letter No.336/AL/BDA, Bhubaneswar dated 09.Jan, 2001
intimating him the selection for the allotment of a plot under the
scheme indicated hereinabove. While the matter stood thus,
unanimous allegation came to be filed against the petitioner and
the matter got into investigation by the Superintendent of Police,
Vigilance, Bhubaneswar. Information being sought from the
Development Authority, the Development Authority appears to
have been supplied necessary information and relevant
documents to Vigilance for their doing the needful. There is
however pleading in paragraph-10 of the writ petition that the
Development Authority informed the Vigilance Authority
intimating that there was no bar for allotment of Commercial
plot as well as residential plot in favour of petitioner within the
Municipal area of Bhubaneswar. Through paragraph-11 of the
writ petition, it is pleaded that Vigilance Authority deemed to
have closed the proceeding. After the Vigilance proceeding
got closed, lottery process was effected and in the lottery
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process Plot No.108 of Prchi Enclave Plotted Development
Scheme fell to the petitioner. In the meantime, depending on
the closure of Vigilance Proceeding, petitioner as well as 2 other
employees of Bhubaneswar Development Authority namely,
Mr.Ambika Prasad Mohanty and Smt.Prativa Baskey were in
entitlement of plots under staff quota. Consequently, final
allotment orders being issued, all such persons had taken
possession of the residential plot under the scheme involved.
Finding there is difficulty, petitioner brought a writ petition vide
W.P.(C).No.853 of 2008 for Development Authority not issuing
the allotment order involving Prachi Enclave Plotted
Development Scheme, Chandrasekharpur, Bhubaneswar. This
Court disposed of the matter on 07.02.2008 authorizing the
petitioner to furnish fresh representation within ten days before
the Allotment Officer of the Development Authority and the
Development Authority-opposite party no.3 therein was directed
to dispose of such representation within a month thereafter.
Following the development in the aforesaid writ petition, the
petitioner filed a representation vide Annexure-11 series. Basing
on a charge-sheet against the petitioner dated 05.12.2008,
proceeding since drawn against the petitioner, petitioner filed
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written statement of defence involving such proceeding on
27.08.2011. There has been appointment of Inquiry Officer and
Marshalling Officer for taking up the inquiry into the charges
against the petitioner. It is brought to the notice of the Court
through the pleading at paragraph-23 of the brief that
challenging the initiation of Disciplinary Proceeding, the
petitioner brought W.P.(C).No.28898 of 2011 and this Court
entertaining the said writ petition on 03.11.2011 while issuing
notice directed the petitioner to co-operate the Inquiry Authority
in allowing continuance of the proceeding. However, there was
direction not to pass final order without leave of the Court.
In the above scenario, petitioner has been served with
cancellation of allotment order in favour of the petitioner in the
Prachi Enclave Plotted Development Scheme, Chandrasekharpur
vide Annexure-17 with clear intimation of forfeiture of
Rs.1,00,000/- for petitioner applying under falsehood. In course
of argument, Mr.Mishra, learned counsel also took this Court to
the plea taken by the petitioner in the rejoinder affidavit and also
the document appended therein.
4. In the process of hearing, Mr.Mishra, learned counsel
appearing for the petitioner took this Court to all such
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documents referred to hereinabove further also to the order-sheet
of the Development Authority vide Annexure-10 series and
taking this Court to the observations therein, further the opinion
of the counsel thereto finds place at page- 64 of the brief
attempted to convince the Court that there is no observation
against the petitioner supporting the decision vide Annexure-17.
5. Mr.Mishra, learned counsel appearing for the petitioner
for the whole background indicated hereinabove took this
Court to the development involved herein involving initial
allotment of a plot by the B.D.A. under Kalinga Nagar Plotted
Development Scheme vide Annexure-1 and in the transfer of
plot vide Plot No.K-9-A/143 to one Farhat Nizami, claiming to
be transfer of such land at pre-possession stage further on the
subsequent allotment of Plot No.262 to be a commercial plot
under District Centre Commercial Plotted development Scheme
at Chandrasekharpur by B.D.A contended that there was rightful
allotment completely in terms of the conditions in the scheme.
Then taking this Court to the cancellation of allotment involved
herein, a residential plot under staff quota in Prachi Enclave
Plotted Development Scheme videAnnexure-4 and taking again
this Court to the brochure condition, Mr.Mishra, learned
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counsel attempted to submit that for there is no restriction in the
entitlement of a plot by an employee even in the entitlement of a
commercial plot from the same Development Authority,
claimed there was lawful application and there has been illegal
rejection of the allotment vide Annexure-17. Taking this Court
to the brochure condition at Annexure-1, Annexure-25 at page-
13 of the rejoinder affidavit and the brochure at Annexure-4,
reading through the same Mr.Mishra, learned counsel attempted
to satisfy the Court that there was no restriction at all either in
the scope for applying by the petitioner under Annexure-4 or
taking a decision involving the allotment of land involving the
land in Annexure-4. Mr.Mishra, learned counsel thus contended
that there has been illegal and arbitrary exercise of power by the
Development Authority in taking out a vested right by passing
the illegal impugned order at Annexure-17 and claimed such
order ought to be interfered and set aside. It is based on such
request, Mr.Mishra, learned counsel for the petitioner took this
Court to the decision of this Court in W.P.(C).No.5274 of 2022
and thus requests this Court upon setting aside of the order at
Annexure-17 there should be direction to the Development
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Authority in the minimum handing over of the plot involved to
the petitioner and allowing regularization.
6. Mr.Mahapatra, learned counsel appearing for the
Development Authority taking this Court to the preliminary
counter averments even though did not dispute that there exists
pre-allotment in favour of the petitioner under the guise of same
Development Authority, first one being a transfer of the land in
pre-allotment stage undisputedly in the involvement of the
petitioner and second one being a commercial allotment of plot
in favour of the petitioner and third one under the discretionary
quota of the Development Authority in terms of conditions in
Annexure-4, however, taking this Court to the counter pleading
contended that for the condition in the brochure vide Annexure-
4 having a discretionary quota in the allotment of residential
plot in favour of the employees to the extent 2% of the actual
availability but such a relaxation should not be considered to
enter into multiple allotment keeping in view the petitioner was
already in allotment of two plots though one of it involved in a
transfer at pre-possession stage. Apart from the plea taken in
the counter affidavit, Mr.Mahapatra, learned counsel for the
Development Authority also took this Court to the judgment of
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this court in O.J.C.No.5485 of 1993 and taking this Court to the
decision of Division Bench through paragraph-27 therein
contended that the Division Bench of this Court relying on a
decision of the Hon9ble Supreme Court in 1995 Supp.(3) SCC
382 has already put a cap in the use of discretionary quota
which is binding on the parties. In the above circumstance,
Mr.Mahapatra, learned counsel attempted to satisfy that the
impugned order at Annexure-17 requires no interference.
7. Considering the rival contentions of the parties, this Court
finds there is no factual dispute to the following:
In the first stage, petitioner was an applicant for the
Kalinga Nagar Plotted Development Scheme vide Annexure-1,
page-24 of the brief. Undisputedly, petitioner remained one of
the allottee in the said scheme. It is in the allotment stage,
petitioner approached the Development Authority showing
intention by 3rd party to take possession of such land and able
to obtain transfer of possession of such land in favour of 3rd
party though pre-delivery of possession in favour of such party.
It is needless to mention here that this allotment in favour of
the petitioner remain under discretionary quota. In the second
stage, petitioner was an applicant for a commercial plot under
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the District Central Commercial Plotted Development Scheme at
Chandrasekharpur again by Bhubaneswar Development
Authority vide brochure at Annexure-25. In the consideration
process, it appears petitioner is in entitlement of a commercial
plot bearing Plot No.262 in District Center Commercial Plotted
Scheme at Chandrasekharpur. Undisputedly, petitioner being an
employee of the Development Authority is already in possession
of Plot No.262 in the aforesaid Development Scheme at the
instance of the B.D.A. In the third stage, petitioner applied for
a residential plot under discretionary quota/staff quota in the
Prachi Enclave Plotted Development Scheme vide brochure at
Annexure-4 and also remained successful in the allotment of
Plot No.108 in Prachi Enclave Plotted Development Scheme.
There also remained an undisputed fact that considering the
second allotment, there involved Vigilance Inquiry but such
inquiry has been dropped finding there was no cap in the
entitlement of the petitioner in the brochure involved therein.
Undisputedly, there has been also writ petition brought to this
Court vide W.P.(C).No.853 of 2008 as well as W.P.(C).No.
9850 of 2012. There is no disclosure by either side as to the
ultimate decision in the second writ petition.
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8. This Court records the submission of Mr.Mahapatra,
learned counsel that in a proceeding on acquisition of property
disproportionate to the income of the petitioner, the petitioner
has already been convicted by criminal Court and as an
outcome, he has already been dismissed from service.
9. This Court from Annexure-4 finds in the Prachi Enclave
Plotted Development Scheme floated by B.D.A., the
Development Authority put a clear condition vide paragraph-9
(A) 5 reserving 2% of the plots available i.e. at least in the
minimum 3 plots under the scheme reserved for staffs of B.D.A..
This Court since finds petitioner is an employee under the
B.D.A. and is unable to appreciate the scope for allotment of
commercial plot in favour of the employee of the very same
Authority. This Court thus is of the view that there should not
be any such allotment in favour of any employee even there
should not have been any allotment in favor of even near and
dear relation of such employee. This Court finds strange in
bringing such brochure and hopes and expects all Development
Authorities in the State hereafter shall remain careful in having
no such relaxation for their employees at least.
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10. Undisputedly the petitioner was an allottee in respect of
Plot No.K-9-A/143 under Kalinga Nagar Plotted Development
Scheme under discretionary quota applying Clause-8(a) of the
brochure at Annexure-1. There is however development to the
extent after the allotment but before delivery of possession on
an application of the petitioner for a 3rd party transfer, the
transfer was effected vide Office Order dated 27.12.1999. In
course of hearing, learned counsel for the Development
Authority brought to the notice of the Court that once there is
allotment in favour of the petitioner applying discretionary quota
and on the request of the petitioner, there involved a transfer of
such land and take out the petitioner from the cap of party in the
entitlement of a plot under discretionary quota. This Court here
takes into account the rival contentions of the parties and finds
the petitioner is already a definite beneficiary involving
discretionary quota on account of allotment under discretionary
quota and for the sale/transfer involved therein, petitioner must
have gained financially. This Court takes into account the
general picture prevailing in the State and records there are
lackhs of people even applying not getting even a single plot
and since the petitioner is already in benefit of a allotment, it is
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only on his application, the allotment was transferred in favour
of 3rd party, there should not have been applying of
discretionary quota particularly involving the petitioner. This
Court finds considering petitioner to be entitlement in another
plot will be jeopardizing the interest of persons , who are yet to
get a single plot. This Court here also takes into account a
Division Bench decision of this Court vide judgment dated
09.04.2002 passed in O.J.C.No.5485 of 1993 in the case of
Jadunath Panda Vs. Bhubaneswar Development Authority &
Ors. In paragraph-27 therein, the Division Bench of this Court
held as follows:
<27. Thus, to sum up, it is to be held that reservation of
plots/houses for categories like Green Card Holders, Scheduled Caste,
Scheduled Tribe and the like and for staff of Development Authorities,
is not permissible in law. However, reservation of some plots/houses
for defence personnel and retiring/retired Government servants and
reservation of some plots/houses for allotment under the discretionary
quota has to be strictly in accordance with the principles and guidelines
framed for the purpose in the light of the judgments of the Apex Court
in V.Purushottam Rao9s case (supra) and Centre For Public Interest
Litigation v. Union of India and others, 1995 supp.(3) S.C.C. 382. In
the case at hand, even though we have found that reservation in respect
of certain categories are impermissible in law, in view of long lapse of
time, since the allotments have been made and possession delivered, it
will not be just and proper at this stage to interfere with the said
allotments.=
11. Coming to the petitioner9s claim on the basis of
observation in the order-sheet of the Corporation at Annexure-
10 series and the information of the employees placed therein at
page 64 of the brief, this Court finds there is no issue in
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supplying all materials vide Anenxure-10 but it is unable to
appreciate in supplying of opinion of the counsel to the parties
under exercise of Right to Information Act. Considering such
document should not have been supplied to 3rd party, as opinion
of counsel remain as a privilege document.
12. It is keeping in view the view rendered by this Court
recorded hereinabove and the decision of the Division Bench,
this Court finds there is no hesitation on the part of this Court in
declining to interfere in the cancellation of allotment vide
Annexure-17 impugned herein. However, considering the
petitioner was a bonafide applicant and the Development
Authority remaining not careful in putting restriction denying
application from the earlier allottees through any development
scheme of the Development Authority, the application of the
petitioner should be construed to be a bonafide application and
there should not be forfeiture of the amount, if any, deposited
by the petitioner. This Court here also records the clear
statement and pleading in the writ petition that the petitioner is
also in the entitlement of a commercial plot in the same
township again under a development scheme of the B.D.A.
project. Thus, this Court while declining to interfere in the
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impugned order at Annexure-17, however finding petitioner was
a bonafide applicant though legally not entitled to any further
allotment, deposit, if any made by the petitioner, is still lying in
the end of the Development Authority, the same should be
refunded to the petitioner along with interest at least @ 6% all
through. Entitlement should be calculated within a period of
three weeks of the receipt of copy of the order and refund should
also be achieved within one week of such assessment.
13. Before parting with the case, this Court likes to put an
observation for future caring in the allotment of land by
Development Authority involved herein to at least put a 8cap9/
<restriction= on applicant by the party already in receipt of land
from the Development Authority under any of its Development
Scheme operated in city or under any other development
scheme in the city and even in any other development scheme
of any other district at least to make it available to all bonafide
citizen instead of allotting multiple land in favour of particular
individuals, who are already in entitlement of a land by such
agencies may in any of the district.
14. The writ petition stands dismissed but however with the
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further direction hereinabove. There is however no order as to
cost.
15. Copy of this judgment be sent to the Advocate General
Office, Secretary, Housing & Urban Development Department
to remain careful in the issuing of the future brochures of any
Development Authority in the State of Odisha at least taking
care of the observation in the matter of restriction indicated in
paragraph-13 hereinabove.
(Biswanath Rath)
Judge
Orissa High Court, Cuttack.
Dated the 1st day of May ,2023/SKS
Digitally signed by
SUSIL KUMAR SUSIL KUMAR SWAIN
SWAIN Date: 2023.05.01
16:26:50 +05'30'
