Orissa High Court
Pradeep Kumar Biswal vs State Of Odisha And Others .... Opp. ... on 1 August, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 06-Aug-2024 11:05:28
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 13864 of 2020
(An application under Article 226 of the
Constitution of India)
*****
Pradeep Kumar Biswal .... Petitioner
-versus-
State of Odisha and others .... Opp. Parties
Advocate for the Parties:
For Petitioner : Mr. Partha Sarathi Nayak, Advocate
For Opposite Parties : Mr. Swayambhu Mishra,
Additional Standing Counsel
CORAM:
JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 01.08.2024
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JUDGMENT
1. This matter is taken up through hybrid mode.
2. Petitioner in this writ petition seeks to assail the order/
letter No.CSP-760/1990/786/CA dated 8th January, 2020
(Annexure-5), whereby the prayer for allotment of government
land/regularization of allotment made by the Petitioner was
rejected by the General Administration and Public Grievance
(GA and PG) Department, Government of Odisha.
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 06-Aug-2024 11:05:28
// 2 //
3. Mr. Nayak, learned counsel for the Petitioner submits
that pursuant to an advertisement, made an application in proper
format for allotment of a government plot on 28th January, 1987
(Annexure-1). In the said application form (Annexure-1),
Petitioner has stated his permanent address as 'AT/PO:
Rachhipur, PS: Jajpur Road, Dist: Cuttack'. His present address
was given as 'P.K.Biswal, OFS, Additional Commissioner-
Commercial Tax Officer, Cuttack-1, East Circle, Cuttack'. In a
drawl of lot, the Petitioner was allotted with the residential Plot
No.5 measuring 60'x90', Drawing B/132, Chandrasekharpur,
New Capital, Bhubaneswar (for short, 'the case land') vide letter
No.19th April, 1990. But the said order was never communicated
to the Petitioner. No public notice was ever issued with regard to
allotment of the case land in favour of the Petitioner. Thus, he
was in complete dark about allotment of the case land in his
favour. When the matter stood thus, the Petitioner submitted an
application under the provisions of Right to Information Act on
21st September, 2007 to know about the up-to-date status of
allotment of Government land in his favour. The Petitioner only
came to know from the information supplied that the case land
was allotted in his favour vide allotment letter dated 19th April,
1990 and the same was communicated in his official address. By
that date, i.e., 19th April, 1990, the Petitioner had already been
transferred and was not available in the address in which the
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 06-Aug-2024 11:05:28
// 3 //
allotment order was communicated. Thus, the Petitioner had no
occasion to know about such allotment.
4. It is his submission that the permanent address was
given in the application form under Annexure-1. Thus, there
was no difficulty in sending the allotment order in his
permanent address. Had it been so communicated; the Petitioner
could have taken steps to deposit the premium within sixty days
of such order of allotment as stipulated therein. Thus, no fault
can be attributed to the Petitioner in not depositing the premium
within the stipulated time.
4.1 However, on receipt of the information through RTI
Act, the Petitioner immediately deposited the premium on 24 th
October, 2007. But no action was taken at the instance of the
GA and PG Department to execute the lease deed in his favour.
The Petitioner also vide letter dated 26th October, 2007
(Annexure-4) requested to supply a draft lease deed for
execution. But the authorities sat over the matter till 2020 and
communicated the impugned order/letter under Annexure-5
stating that the prayer for allotment of a piece of government
land/regularization of allotment has been rejected. It was stated
therein that since the Petitioner did not deposit the premium
within a period sixty days and further period of 15 days, as
stipulated in the allotment order, the provisional allotment order
stood cancelled automatically.
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 06-Aug-2024 11:05:28
// 4 //
4.2 It is further submitted that immediately after the
Petitioner came to know about such allotment through RTI
application, the premium was deposited. The GA and PG
Department had also never objected to the acceptance of
premium deposited by the Petitioner. He further submits that
case of the Petitioner is squarely covered by order dated 23rd
November, 2017 passed in W.P.(C) No.32757 of 2011.
Petitioner also annexed a copy of the said order as Annexure-6
to the writ petition. It is submitted that the said order was
challenged by the GA and PG Department before the Hon'ble
Supreme Court in SLP(C) No.3939 of 2019, which was
dismissed vide order dated 8th January, 2020. It is further
submitted that the Petitioner is ready and willing to deposit the
premium at the present market rate. Thus, steps should be taken
to execute the lease deed in his name.
5. Mr. Mishra, learned ASC vehemently objects to the
above. It is his submission that the Petitioner had never
intimated the change of his present address to the GA and PG
Department. The writ petition is hopelessly barred by time. It is
submitted that when the allotment order stood cancelled
automatically in view of the stipulation in the order of allotment
itself, no cause of action survives to move this writ petition. It is
further submitted that the order dated 23rd November, 2017
passed in W.P.(C) No.32757 of 2011 has no application to the
instant case, as in that case, the allotment order was
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 06-Aug-2024 11:05:28
// 5 //
communicated in the address of the father of the Petitioner's
first wife therein. But by the time the allotment order was
communicated, he had married for the second time and
intimation of the subsequent address was given to the GA and
PG Department. In the instant case, no such communication has
been made by the Petitioner. He also relied upon the case of
State of Odisha and another Vs. Malati Biswal and others in
Civil Appeal Nos.9895-9896 of 2017 disposed of on 27th July,
2017, wherein, Hon'ble Supreme Court held as under:-
"In view of the aforesaid stipulation, it is clear that
there was no necessity of passing any formal cancellation
order and the provisional allotment order stood cancelled
automatically due to admitted non-compliance of the
requisites to be performed, as stipulated in the order of
allotment. No reason has been shown good bad or otherwise
why there was so much of delay in approaching the Court.
Once the government framed benevolent scheme such people,
it was incumbent upon them to take advantage of the same as
stipulated in the scheme and the allotment orders within
reasonable time, it would not be a sufficient ground in the
facts of the case that since some of them have served the
country, they can approach the court at any time after 20
years. Time cannot be relaxed after lapse of decades delay.
The delay vas inexcusable and due to latches on the part of the
respondent they were not entitled for any relief.
Thus, the impugned order is hereby set aside. The
appeals are, accordingly, allowed. No order as to costs."
In the case of Malati Biswal (supra), Hon'ble Supreme Court has
categorically held that there was no necessity for an order of
formal cancellation, as the provisional allotment order stood
automatically cancelled due to admitted non-compliance of the
requisite to be performed as stipulated therein. In the instant case,
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 06-Aug-2024 11:05:28
// 6 //
admittedly the Petitioner did not deposit the premium within the
stipulated time as stipulated in the provisional order of allotment.
Thus, no formal order of cancellation is necessary to be passed in
the instant case. He further submits that execution of the lease
deed by accepting the premium at the present rate does not arise,
as the allotment order had already been cancelled automatically,
as aforesaid. It is also submitted that receipt of the primum at a
much belated stage, i.e., on 26th October, 2007 does not give a
right to the Petitioner for allotment of the case land. He,
therefore, prays for dismissal of the writ petition. He also relied
upon the case of Subash Chandra Nayak Vs. State of Odisha
and others [W.P.(C) No.8829 of 2012 disposed of on 19th March,
2024], wherein this Court relying upon the ratio in Malati Biswal
(supra), held as under:-
"10. In the instant case, admittedly there is a delay of
nineteen years in filing the writ petition. Further, the premium
of the allotted land was not paid within the stipulated time.
There is also no material on record to show that the duly filled
in lease deed was ever produced for approval. Thus, no formal
order was required to be passed for cancellation of the
allotment. It stood cancelled automatically in terms of Clause-5
of Annexure-3.
xx xx xx
14. Admittedly, there is a delay of nineteen years in filing
the writ petition. The Petitioner submits that after the matter
came to his knowledge, he approached to the Department on
several occasions for execution of the lease deed, but in vain.
Only because the Petitioner was approaching the Department
for redressal of his grievances cannot be a good ground for
condoning inordinate delay of nineteen years. There is also no
material in support of the same."
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 06-Aug-2024 11:05:28
// 7 //
6. Heard learned counsel for the parties. Perused the
materials on record including the case laws cited.
7. Admittedly, provisional allotment of the case land
was made in favour of the Petitioner on 19th April, 1990
(Annexure-3). The said order was communicated to the
Petitioner in the address (present address) given in the
application filed by the Petitioner for allotment of the
government plot. It is also admitted that at no point of time,
the Petitioner had ever communicated the change of his
present address to the GA and PG Department. No document
is placed before this Court, which would cast an obligation
on the GA and PG Department to publish the result of the
drawl of lot either in the newspaper or giving a public notice.
It is, however, submitted by Mr. Nayak, learned counsel for
the Petitioner that the allotment order should have been
communicated to the Petitioner in both permanent and
present address. Ordinarily, the communications are made in
the present address given in the application unless and
otherwise intended by the applicant in his application. In the
instant case, the Petitioner has never stated that the order of
provisional allotment, if any, should be communicated in his
both present and permanent address. No ground has been
made out as to why the provisional allotment order should
have been sent in the permanent address of the Petitioner.
Since the Petitioner had given the 'present address' for
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 06-Aug-2024 11:05:28
// 8 //
communication, the GA and PG Department had committed
no error in communicating the provisional allotment order in
the said address.
8. There is nothing on record to appreciate as to why
the Petitioner woke up from his slumber in the year 2007 to
make an application under the RTI Act. Admittedly, the
application for allotment of government land was made in
the year 1987 and the provisional allotment in favour of the
Petitioner was made in the year, 1990. The Petitioner sought
for the information only in the year 2007, i.e., after seventeen
years.
9. Of course, the Petitioner had immediately deposited
the premium as stipulated in the provisional allotment order
of the case land immediately after getting the information
under the RTI Act. Only because the premium was received
by the GA and PG Department, that does not give a right to
the Petitioner to make a claim for execution of the lease
deed. It is, however, not understood as to why the Petitioner
was communicated letter/order under Annexure-5 on 8th
January, 2020 after receipt of the letter along with primum
on 26th October, 2007 as per Annexure-4 series. Be that as it
may, in the letter under Annexure-5, it was intimated to the
Petitioner that since he failed to deposit the premium within
the sixty days from the date of issuance of the provisional
order of allotment or within an extended period of further
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 06-Aug-2024 11:05:28
// 9 //
fifteen days on payment of fine of Rs.50/- for each day, as
stipulated in the provisional allotment order, the provisional
allotment of the case land stood automatically cancelled. In
the case of Malati Biswal (supra), Hon'ble Supreme also in
clear terms has categorically held that no formal cancellation
order is necessary to be passed since the provisional
allotment order stipulates that it would stand automatically
cancelled if the allottee does not comply with the stipulation
made therein.
10. Order dated 23rd November, 2017 passed in W.P.(C)
No.32757 of 2011 is also not applicable to the case of the
Petitioner, as the Petitioner therein had communicated his
subsequent address to the GA and PG Department, whereas
in the instant case, the Petitioner has not.
11. Taking into consideration the facts and
circumstances of the case in its entirety, this Court finds that
the Petitioner was thoroughly intelligent in enquiring about
the status of the provisional allotment of the case land. A
prudent man like the Petitioner is expected to make an
enquiry within a reasonable time with regard to status of
allotment of the government land after making an application
in the year 1987. It also appears that the provisional
allotment order was issued in the 'present address' given in
the application form submitted by the Petitioner. Thus, no
fault can be found with the GA and PG Department for not
Signed by: SASANKA SEKHAR SATAPATHY
Designation: AR-cum-Senior Secretary
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 06-Aug-2024 11:05:28
// 10 //
sending the provisional allotment order in his 'permanent
address' in absence of any express intimation in that regard
by the Petitioner.
12. Since the order of allotment stood automatically
cancelled since 1990, the prayer for execution of the lease
deed by accepting the premium at the present rate is not
acceptable.
13. Accordingly, the writ petition being devoid of any
merit stands dismissed, but in the circumstances, there shall
be no order as to costs. 0
s.s.satapathy (K.R. Mohapatra)
Judge
