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2017 DIGILAW 1048 (ORI)

Orissa State Housing Board v. Nityananda Jena

2017-09-14

B.R.SARANGI, VINEET SARAN

body2017
JUDGMENT : Vineet Saran, J. This is an intra Court appeal filed by the Orissa State Housing Board (for short, “the Board”) challenging the judgment and order dated 04.12.2014 passed in W.P.(C) No. 20714 of 2011 whereby the writ petition has been allowed. 2. The brief facts of the case are that on 15.03.1973, the writ-petitioner, Nityananda Jena was allotted House No. L-3/61 in Acharya Vihar Housing Scheme in Bhubaneswar by the Board which was on a plot measuring about 1000 Sqft. The writ petitioner took possession of the said house and continued to reside therein. The adjacent land to the said house was lying vacant, which was measuring about 6000 Sqft. and was much bigger than the land on which the house of the writ petitioner exists. 3. Contending that because of the vacant land the respondent-writ petitioner was facing disturbance and difficulties, he made an application for allotment of the said land in his favour. Then on 25.06.1999, the Board decided to give "permissive possession" of that adjacent land measuring 5892 Sqft. on payment of Rs.4,46,363/- with the condition that the respondent shall not utilize the land for any construction purpose without permission of the authorities. Pursuant thereto, the respondent deposited a sum of Rs.1,10,000/- on 13.07.1999 and an amount of Rs.55,000/- on 21.02.1999 i.e. a total sum of Rs.1,65,000/-. However, the respondent did not pay the balance amount out of the demand of Rs.4,46,363/- and thus no deed was executed in favour of the writ-petitioner. 4. By order dated 06.05.2012 passed by the Board, the earlier offer was withdrawn and the Board refunded the entire amount of Rs.1,65,000/-to the respondent in shape of cheque, which has been encashed by the respondent. Thereafter, in the year 2010, a general advertisement was issued by the Board on 30th September, 2010 for the settling adjacent vacant land to the allottees on prescribed terms, in response to which the respondent made an application on 15.11.2010 to the Board for allotment of the said adjacent vacant land in his favour on payment of the requisite price of the land. When his application was not considered, the respondent filed W.P.(C) No.20714 of 2011 with the following prayer: “In the light of above stated circumstances, it is therefore humbly prayed before this Hon’ble Court that it may graciously be pleased to admit this writ application, issue notice to opp. When his application was not considered, the respondent filed W.P.(C) No.20714 of 2011 with the following prayer: “In the light of above stated circumstances, it is therefore humbly prayed before this Hon’ble Court that it may graciously be pleased to admit this writ application, issue notice to opp. parties and after hearing the parties be graciously pleased to direct the opp. party no.3 to dispose of the application filed by the petitioner in pursuance to the notification dated 30.09.2010 and settle the vacant land measuring up to Ac.0.103 lying adjacent to L3/61 in favour of the petitioner on payment of price of the land as per prevailing bench mark valuation, in the interest of justice. And may pass such other order/direction as this Hon’ble Court may think fit and proper. And for this act of kindness the petitioners shall remain duty bound and ever pray.” 5. During pendency of the writ petition, a notice dated 26.06.2012 was issued by the Board to the respondent to show cause as to why the allotment made in his favour be not cancelled. Thereafter, the respondent filed an amendment application on 28.05.2013, which was allowed on 18.11.2013 and the prayer made in the writ petition was amended, which is as follows: “(i) Admit this writ application and issue Rule NISI in the nature of writ of Certiorari calling upon the Opposite parties No.2, 3 and its authorities to show cause as to why the show cause notice dtd. 26.06.2012 issued by the Assistant Housing Commissioner (Urban), Orissa State Housing Board, Bhubaneswar shall not be given effect to, quash or set aside. (ii) Further be pleased to issue a Rule NISI in the nature of writ of Mandamus commanding the Opposite parties No.2, 3 and its authorities to complete the allotment process of the vacant land adjacent to the petitioner’s house at L3/61, Acharya Vihar, At/P.O. Bhubaneswar, Dist-Khurda as per the bench mark valuation as assessed as on 03.05.2010 by the State Government. (iii) Further be pleased to issue Rule NISI in the nature of writ of Mandamus commanding the Opp. Parties No.2, 3 and its authorities not to create any third party interest on the said vacant land adjacent to the petitioner’s house at L3/61, Acharya Vihar, At/P.O. Bhubaneswar, Dist-Khurda, (iv) Further be pleased to issue Rule NISI in the nature of writ of Mandamus commanding the Opp. Parties No.2, 3 and its authorities not to create any third party interest on the said vacant land adjacent to the petitioner’s house at L3/61, Acharya Vihar, At/P.O. Bhubaneswar, Dist-Khurda, (iv) Further be pleased to issue Rule NISI in the nature of writ of Mandamus commanding the Opp. Parties No.2, 3 and its authorities to allow the petitioner’s to deposit the amount and for the vacant and as per the bench mark valuation as assessed by the State Government as on 3.05.2010 for the vacant lands. (v) Further be pleased to issue Rule NISI in the nature of writ of Mandamus commanding the Opp. party No.1 and its authorities not to take any coercive steps the said vacant adjacent land to the petitioner’s house at L3/61, Acharya Vihar, At/P.O. Bhubaneswar, Dist-Khurda, (vi) Further be pleased to issue Rule NISI in the nature of writ of Mandamus commanding the Opp. Parties and its authorities to transmit the record relating to the said vacant land adjacent to the petitioner’s house at L3/61, Acharya Vihar, At/P.O. Bhubaneswar, Dist-Khurda, (vii) Pass such other order/orders, direction/directions as this Hon’ble Court may deem fit and proper.” 6. Thereafter the matter came up before the learned Single Judge for final disposal, which has been disposed of with the direction to the writ-petitioner-respondent herein to deposit the entire amount as per the offer made to him on 25.06.1999 along with 12% interest per annum from the year 1999 till the payment is made, whereafter, the Board has been directed to issue allotment order in favour of the writ-petitioner-respondent. It is this the order of the learned Single Judge which is under challenge. 7. It is noteworthy that during pendency of the writ petition Nityananda Jena had expired and his legal representatives have been substituted. 8. We have heard Shri Dayananda Mohapatra, learned counsel for the appellant and Shri Aswini Patnaik, learned counsel for the writ petitioner-respondents herein, and perused the record. 9. It is contended by the learned counsel for the appellant that the offer, which was made to the writ petitioner-respondent on 25.06.1999, was not for allotment of the land in his favour but only for "permissive possession" without right to raise any construction thereon. As per the terms of the offer, the appellant was to deposit Rs.4,46,363/-, which had admittedly not been deposited. As per the terms of the offer, the appellant was to deposit Rs.4,46,363/-, which had admittedly not been deposited. Hence in the year 2002, Rs.1,65,000/- deposited by the respondent, as part payment was refunded to him, which was also duly received by the respondent. 10. It is contended that the matter relating to the offer made to the writ petitioner on 25.06.1999 was thus closed after the amount of Rs.1,65,000/- was accepted and the cheque was encashed by him. It is thus contend by Shri Mohapatra, learned counsel for the appellant that the direction issued by the learned Single Judge while allowing the writ petition is beyond the prayer made in the writ petition, as originally the prayer made by the writ petitioner was only for considering his application for allotment of the adjacent land in terms of the notification dated 30.09.2010 on payment of the prevailing bench mark valuation price of the land, whereas while allowing the writ petition, direction has been issued to allot the land in favour of the writ-petitioner in terms of the offer made on 25.06.1999, which matter had already been closed in 2002 and there was no such prayer made in this regard even in the amended prayer. 11. The submission thus is that the direction issued by the learned Single Judge providing for allotment of the land in question on payment of the price, which was offered to the petitioner for "permissive possession" only and not for outright allotment, is wholly unjustified inasmuch as it was not even prayed for by the writ petitioner. It is further contended by Shri Mohapatra, learned counsel for the appellant that at best the application of the petitioner could have been considered in terms of the advertisement dated 30.09.2010 and no further relief could have been granted in the writ petition. 12. Shri Patnaik, learned counsel for the respondents has submitted that since the offer made to the writ petitioner was as per valuation of the open land in the year 1999, the writ petitioner-respondent was required to deposit a sum of Rs.4,46,363/-. Thus, the direction of the learned Single Judge to deposit the said amount along with 12% interest per annum is justified and since the writ petitioner-respondent has already deposited the amount for such allotment, the appellant-Board should be directed to issue allotment order. 13. Thus, the direction of the learned Single Judge to deposit the said amount along with 12% interest per annum is justified and since the writ petitioner-respondent has already deposited the amount for such allotment, the appellant-Board should be directed to issue allotment order. 13. Having heard learned counsel for the parties and considering the facts and circumstances of the case, we are of the opinion that the direction issued by the learned Single Judge was beyond the prayer made in the writ petition. Once the respondent had accepted the cheque of Rs.1,65,000/- and had also encashed the same in the year 2002, the offer made by the Board to the respondent on 25.06.1999 had come to an end. No benefit of such offer could thus have been granted to the writ petitioner. 14. Judicial notice can be taken of the fact that valuation of the land as in the year 1999, has increased manifold since then. As such, in our view, no benefit of the offer made in the year 1999 should have been given to the writ petitioner-respondent in the year 2014, especially when the writ petitioner had not complied with the terms of such offer and had also accepted the refund of the advanced deposit made by him, after which the matter stood closed. 15. It is not disputed that the Board had issued an advertisement dated 30.09.2010 whereby the owner of the house/land/plot could be allotted the adjacent vacant land on certain prescribed terms if the conditions were fulfilled. 16. Shri Mohapatra, learned counsel for the appellant has submitted that such allotment was meant for such small tracks of lands which were adjacent to the plot of existing allottees and did not have access from any side, and that the case of the respondent-writ petitioner would not fall in that category. 17. Be that as it may, we are not inclined to go into the question as to whether the vacant land in question fell within the category for allotment in terms of the notification dated 30.09.2010, or not. However, considering that respondent-writ petitioner had applied for allotment of the vacant adjacent land, which was in response to the advertisement dated 30.09.2010, it was incumbent upon the Board to have considered the same in accordance with law and the policy under which such advertisement had been issued. 18. However, considering that respondent-writ petitioner had applied for allotment of the vacant adjacent land, which was in response to the advertisement dated 30.09.2010, it was incumbent upon the Board to have considered the same in accordance with law and the policy under which such advertisement had been issued. 18. Accordingly, for the reasons given herein above, we allow this appeal and quash the judgment and order dated 04.12.2014 passed by the learned Single Judge in W.P.(C) No.20714 of 2011. In the facts and circumstances of the case, we further grant the prayer in favour of the writ-petitioner-respondents to the extent that the Orissa State Housing Board shall consider the application of the writ-petitioner filed on 15.11.2010-which was filed in response to the advertisement dated 30.09.2010-in accordance with law and as per its policy under which such advertisement dated 30.09.2010 was issued. The said application may be considered as expeditiously as possible, preferably within three months from the date of filing of certified copy of this order along with the photocopy of the application dated 15.11.2010 by the respondents before the Board. It is further, directed that in case any amount has been deposited by the respondents herein with the Board in terms of the judgment of the learned Single Judge, the same shall be refunded to the respondents within one month from the date of respondents filing such application for refund before the Board, along with necessary documents of proof that they would be entitled to such refund as heirs of the writ-petitioner, late Nityananda Jena. 19. The appeal is thus allowed and the writ petition stands disposed of in the terms as indicated above. There shall be no order as to costs.