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2021 DIGILAW 127 (ORI)

Gopabandhu Press v. Director Of Estate, Ga Dept

2021-03-16

B.P.ROUTRAY, S.MURALIDHAR

body2021
JUDGMENT 1. Heard Mr. A. Patnaik, learned counsel for the Petitioners and Mr. S. Palit, learned Additional Government Advocate for the State-Opposite Parties. 2. Both these writ petitions arise from a common set of facts and are disposed of by this common order. 3. In both the writ petitions, Petitioner No.1 is M/s. Gopabandhu Press, which is registered as a Small Scale Industrial Unit (SSI Unit) provisionally registered on 6th November 1976, by the District Industries Centre, Puri. In W.P. (C) 12900 of 2011 Petitioner No.2 is Sri Rash Mohan Bhowmick, the erstwhile proprietor of Petitioner No.1. In W.P. (C) 4087 of 2014 Petitioner No.2 is Sri Sanjeeb Bhowmick, the son of late Sri Rash Mohan Bhowmick, and who claims to be the current Proprietor of Petitioner No.1. 4. It is stated that prior to 1985-86, the said SSI Unit was being run temporarily by Sri Rash Mohan Bhowmick in a rented private building. He claimed to be a refugee from Bangladesh and to be running the business of a printing press since 1965-66. Initially, Sri Rash Mohan Bhowmick was allotted a residential plot at A/30, Laxmisagar, Bhubaneswar by the General Administration Department (G.A. Department), State of Odisha. The plot was to an extent of 1550 sq.ft. The conditions attached to the allotment letter dated 22nd June 1977, required Sri Rash Mohan Bhowmick to deposit an amount of Rs.1779.16 @ Rs.50,000/- per acre towards premium of the land. He claims to have complied with this condition on 24th February, 1978. According to the Petitioners when Sri Rash Mohan Bhowmick sought to take possession of the allotted plot, he found that it had been encroached upon. Having no alternative, he applied for allotment of another plot admeasuring 5760 sq. ft located in plot No.A/3, A/4 and A/5 of Mouza-Laxmisagar in the industrial area of Bhubaneswar for expansion of the printing press by installing additional machineries. 5. According to the Petitioners, the built up area in terms of the layout plan for establishing the printing press worked out to 2300 sq. ft. On account for expansion of printing press unit, the bonafide requirement of Petitioner No.1 was 5760 sq. ft. On 9th April 1985, the GA Department allotted plot No.A/4 admeasuring 35ft x 45ft. The Petitioners took possession of the said plot No. A/4 on 14th January, 1986. 6. ft. On account for expansion of printing press unit, the bonafide requirement of Petitioner No.1 was 5760 sq. ft. On 9th April 1985, the GA Department allotted plot No.A/4 admeasuring 35ft x 45ft. The Petitioners took possession of the said plot No. A/4 on 14th January, 1986. 6. The Petitioners sate that around the same time, the Petitioners 'also occupied/retained plot Nos. A/2 and A/3 recommended for allotment'. The truth of the matter is that the Petitioners encroached upon the aforementioned plots anticipating their eventual allotment in their favour. It is stated that by an order dated 9th September 2009, the G.A. Department allotted Plot A/3 measuring 35ft x 55ft under Khata No.716, adjacent to Plot A/4, with certain conditions. Condition 8, which the Petitioners object to states 'the allottee shall handover vacant passion of Plot No.A/2 to R.I., G.A. Department prior to execution of lease deed'. 7. Claiming that they were in continuous and interrupted possession of the Plot A/2 since 1982-83, on a part of which the printing press was running, the Petitioners claimed to be unable to take possession of Plot A/3. Meanwhile, the Petitioners' allotment dated 9th September 2009, was 'being extended on the Petitioners application for time extension.' 8. It is in those circumstances that W.P.(C) No.12900 of 2011 was filed specifically praying that the aforementioned condition No.8 of the allotment letter dated 9th September 2009 should not be given effect to and 'set aside only to that extent.' The further prayer was to direct the G.A. Department to adjust the premium amount already lying in deposit with it since 24th February 1978, as premium for plot No.A/2 and not to create any third party interest. 9. W.P.(C) No.12900 of 2011was first listed on 7th February 2013, when notice was issued to the Opposite Parties. An interim order to maintain status quo till the next date was passed. That interim order has continued since then. 10. The facts that led to filing of the companion W.P.(C) No.4087 of 2014 was that the Petitioners had approached a nationalized Bank in May 2013, for financial assistance for expanding the printing business. In order to avail the credit facilities, the Petitioners made an application on 1st July 2013 to the G.A. Department for grant of mortgage permission. This was followed by a reminder on 4th November 2013 and 20th January 2014. In order to avail the credit facilities, the Petitioners made an application on 1st July 2013 to the G.A. Department for grant of mortgage permission. This was followed by a reminder on 4th November 2013 and 20th January 2014. According to the Petitioners, it was revealed through an RTI response that the Petitioners' application for mortgage permission had been rejected. A copy of the rejection order dated 22nd October 2013, and 18th February 2014, was obtained by the Petitioners. Both these orders have been challenged in the companion writ petition. A further prayer has been made for a direction to the Opposite Parties to grant the Petitioners mortgage permission. 11. It is stated by the G.A. Department in the counter affidavit that Sri Rash Mohan Bhowmick, Petitioner No.2 in W.P.(C) No.12900 of 2011 had, after taking possession of Plot No.A/4, 'illegally encroached on the adjacent plot Nos. A/2 and A/3 on the pretext of running of printing press in the said area'. It is further stated that due to his repeated requests, plot No.A/3 was allotted on 9th September 2009, but on account of the proprietor of Gopabandhu Press failure to comply with the conditions of the allotment order, the lease deed could not be executed. It is pointed out that due to 'persistent encroachment over the adjacent plot No. A/2', the Opposite Parties have taken a conscious decision to reject the prayer of Petitioners for grant of NOC in his favour for availing loan from Bank of India.' It thus appears that the principal reason for rejecting the request of the Petitioners for mortgage permission was that they had encroached upon the Plot No.A/2. 12. W.P.(C) No.12900 of 2011 was listed for hearing on 4th March 2021 and on that date, the following order passed by the Court: 'Heard Mr. A. Patnaik, learned counsel for the Petitioners and Mr. S. Palit, learned Additional Government Advocate for the State-Opposite Parties. Counsel for the Petitioners assures the Court that the vacant peaceful possession of Plot No.A/2 will be handed over to the Government of Odisha through the G.A. Department positively on or before 15th March, 2021. The Court makes it clear that if the above assurance is not adhered to, no further consideration of the present petition shall take place. List on 16th March, 2021.' 13. The Court makes it clear that if the above assurance is not adhered to, no further consideration of the present petition shall take place. List on 16th March, 2021.' 13. However, despite the above assurance, the Petitioners failed to handover the vacant peaceful possession of plot No.A/2. On the other hand, I.A. No.4437 of 2021 has been filed seeking further time for handing over the vacant possession of plot No.A/2. By a separate order passed today, the said application has been dismissed by this Court. 14. Relying on the decision in M/s. Motilal Padampat Sugar Mills Co. Ltd. v. the State of U.P. (1979) 2 SCC 409 , it is contended by Mr. Patnaik, learned counsel for the Petitioners that the principle of promissory estoppel stands attracted in the present case and that the G.A. Department cannot be allowed to renege on the assurance it has held out to the Petitioners regarding the allotment of plot Nos. A/2 and A/3 in their favour. Likewise, reliance has been placed on the decision in National Buildings Construction Corporation v. S. Raghunathan (1998) 7 SCC 66 to contend that the Petitioners had an legitimate expectation that plot Nos. A/2 and A/3 would be allotted in their favour without any preconditions. Reliance has been placed on the decision in Ramana Dayaram Shetty v. The International Airport Authority of India (1979) 3 SCC 489 as well as Chintaman Rao v. The State of M.P. AIR 1951 (SC) 118 to contend that the conditionality attached to the allotment order vis-a-vis plot No.A/3 was arbitrary and unreasonable, irrational and violative of Article 14 of the Constitution of India. Reliance has also been placed on the decision in Prafulla Kumari Das v. State of Orissa 2012 (II) ILR-Cut-609 to contend that when the land was lying vacant and is stated to have been in possession of the Petitioners for several decades it would be unfair on the part of the Opposite Parties to decline to execute a lease deed in favour of the Petitioners. 15. Having carefully examined the above decisions and considering the submissions of learned counsel for the Petitioners, this Court is not persuaded to accept any of the submissions. 15. Having carefully examined the above decisions and considering the submissions of learned counsel for the Petitioners, this Court is not persuaded to accept any of the submissions. The fact, which has been unable to be disputed by the Petitioners, is that knowing fully well that only plot No. A/4 had been allotted in the first place in favour of Petitioner No.1, its Proprietor Sri Rash Mohan Bhowmick chose to willfully occupy by way of encroachment plot Nos. A/3 and A/4, which were adjacent to plot No.A/2. This was a risk that the Petitioners took with the impunity knowing fully well that they had no rights, title or interest to plots A/2 and A/3. They made no attempt, apart from writing some letters seeking allotment, to vacate those premises which they illegally occupied. On the contrary, they operated the printing press on illegally encroached upon the plots. There was no absolutely no justification in the eye of law for this. 16. In the above background, there was no occasion for invocation of the doctrine of promissory estoppel or any legitimate expectation. The allotment letter dated 9th September 2009, clearly stipulates the conditions under which plot No.A/3 would be allotted. Considering that not only plot No. A/3, but even plot No.A/2 was encroached upon, it was only reasonable that the G.A. Department insisted that the said encroachment be cleared. The Court finds absolutely nothing arbitrary or irrational in the said condition. Therefore, reliance by the Petitioners on the decisions in Ramana Dayaram Shetty (supra) and Chintaman Rao (supra) is misplaced. Also having willfully flouted the law by illegal encroaching upon the government land, the Petitioners cannot take advantage of the legal position explained in Prafulla Kumari Das (supra). 17. The consequential refusal of the mortgage permission by the G.A. Department because of violation of the condition of allotment by the Petitioners also, therefore, cannot be held to be illegal, arbitrary or irrational. 18. For all of the aforementioned reasons, the Court finds no merit in either of the writ petitions. Accordingly, the writ petitions are dismissed. The interim order dated 7th February 2013 passed in W.P.(C) No.12900 of 2011 stands vacated.