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2018 DIGILAW 826 (ORI)

Udaya Nath Aich v. B. D. A.

2018-11-30

S.K.MISHRA

body2018
JUDGMENT S.K.Mishra, J. - In this writ petition, the petitioner has sought a direction from this Court to the Bhubaneswar Development Authority (hereinafter referred to as the B.D.A. for brevity) to handover possession of residential Plot No.268 situated in Prachi Enclave Plotted Development Scheme, Chandrasekharpur, Bhubaneswar. 2. In the year 2013, the B.D.A. issued a brochure-cum-application form for auction sale of constructed assets and plots and the last date of submission of application was on 11.12.2013 and the opening of sealed quotations was on 20.12.2013 at 11.00 A.M. The petitioner in pursuant to issuance of brochure, submitted an application and participated in the auction bid by the B.D.A. in respect of Plot No.268 of Prachi Enclave Plotted Development Scheme, Chandrasekharpur, Bhubaneswar (hereinafter referred to as the developed area). The petitioner offered a sum of Rs.7,28,200/- as the bid value and he was declared as the highest bidder. Pursuant to the terms and conditions of the auction the petitioner deposited 10% of the bid amount as EMD. On 11.2.2014 the B.D.A. issued a letter in favour of the petitioner asking him to deposit the remaining amount of Rs.65,53,800/- within thirty days, but because of the reasons beyond his control, he could not deposit the same and as per Clause-6(2) another 6 months time were given to the petitioner to pay the amount subject to payment of interest @ 15% per annum compounded on the balance amount for the extended period. 3. It is borne out from the record that after 39 days of the extended period, the petitioner paid the money, but the B.D.A. did not accept his payment as it was not accompanied with 15% interest and directed the petitioner to take back his money deposited without any interest and the 10% E.M.D. deposited was forfeited by the B.D.A. 4. In the writ petition the petitioner has submitted that for the conduct of the allotment officer, i.e. opposite party no.2, in remaining on leave for a long period, his application for sanction of loan, by the Bank, could not be processed. 5. In course of hearing taken on 11.8.2017, learned counsel for the petitioner submitted that the petitioner is willing to pay 15% interest on the delayed payment, but the B.D.A. did not accept the same and instead filed a further affidavit on the rejoinder affidavit filed. 6. 5. In course of hearing taken on 11.8.2017, learned counsel for the petitioner submitted that the petitioner is willing to pay 15% interest on the delayed payment, but the B.D.A. did not accept the same and instead filed a further affidavit on the rejoinder affidavit filed. 6. Admittedly, the petitioner was the highest bidder with respect to the Plot No.268 of the developed area and as per Clause-6.1 he should have deposited the full balance amount after adjustment of the EMD within thirty days from the date of provisional allotment letter. Inability to pay the balance amount within the prescribed time limit or withdrawal by the bidder shall render the bid invalid and the total EMD amount will be forfeited. Clause-6.2 provides that on the request of the bidder, the B.D.A. has discretion to extend the last date of deposit of the balance bid amount for a reasonable period up to maximum of six months, subject to payment of interest @ 15% per annum compounded on the balance amount for the extended period. Inability to pay the balance amount within the extended period shall render the bid invalid and the EMD will be forfeited. 7. In this case the EMD has been forfeited and the allotment has been cancelled vide Annexure-C/1. It is borne out from the record that the petitioner was given extension of time as per Clause-6.2 of the brochure and though he could not pay the same within the stipulated time, after the delay of only 39 days the amount was paid by him on 21.10.2014 and the B.D.A. has accepted the deposit without prejudice. It is true that the petitioner's allotment has been cancelled on 23.4.2015, as per Annexure-6/1, but prior to that i.e. on 21.10.2014 the petitioner has deposited the bid amount minus the security deposit with the B.D.A. and the B.D.A. remained silent for six months and then cancelled his application and asked the petitioner to take away Rs.65,53,800/-, i.e. the amount after deducting the EMD. 8. In course of hearing as noted earlier, the petitioner is ready and willing to pay 15% interest compounded from the last date deposit of money as per Clause-6.1 and the actual date of payment, i.e. 21.10.2014. He was supposed to deposit Rs.65,53,800/- along with service tax, vat, TDS etc. within 30 days, i,e. from 11.2.2014. 8. In course of hearing as noted earlier, the petitioner is ready and willing to pay 15% interest compounded from the last date deposit of money as per Clause-6.1 and the actual date of payment, i.e. 21.10.2014. He was supposed to deposit Rs.65,53,800/- along with service tax, vat, TDS etc. within 30 days, i,e. from 11.2.2014. He has deposited the money on 21.10.2014, i.e. 39 days after extension of the date of payment. 9. It is apparent from the record that the offset price of Plot No.268 was Rs.35,81,600/-and the petitioner has offered for more than that, i.e. Rs.72,82,000/-. Though the petitioner had some difficulty in payment as because of non-availability of the Bank loan, which is primarily attributable to the action of opposite party no.2, and the plea, which is raised by the petitioner, has not been denied by the opposite parties, this Court is of the opinion that the petitioner should be extended the benefit. 10. It is also taken note of that the B.D.A. is an instrumentality of the State and is supposed to act as a model developer of land and it should not benefit from the difficulties faced by the petitioner. So, this Court is inclined to quash Annexure-C/1 by allowing the writ petition and direct the B.D.A. to calculate 15% interest from 12th March, 2014 up to 21.10.2014. The B.D.A. shall take steps within a period of fifteen days from the date of communication of this order and allows thirty days time to the petitioner to pay the same. On payment of the same, Plot No.268, Prachi Enclave Plotted Development Scheme, Chandrasekharpur, Bhubaneswar, shall be allotted to him within a period of fifteen days thereafter. 11. With such observation, the writ petition is disposed of. 12. There shall be no order as to costs.