Sarojkanta Mallick vs Bhubaneswar Development Authority, Represented Through Its Vice Chairman & Ors

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 allotment/possession of Plot No.108 of Prachi Enclave Plotted Development Scheme in Chandrasekharpur, Bhubaneswar.

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.

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 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 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 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 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.

In  the  process  of  hearing,  Mr.Mishra,  learned  counsel appearing for the petitioner took this Court to all such 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.

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 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 Authority in the minimum handing over of the plot involved to the petitioner and allowing regularization.

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 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.

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 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.

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.

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.

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 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.”

Coming  to  the  petitioner’s  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 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.

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 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.

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 ‘cap’/“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.

The writ petition stands dismissed but however with the further direction hereinabove. There is however no order as to cost.

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.

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