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Judgment
Dr. Sanjeeb K Panigrahi, J.
In this Writ Petition, the petitioner seeks a direction from this Court to quash BDA’s cancellation of LIG Plot No. K4-548 and re-allot it in her favour, or alternatively allot her one of the LIG plots advertised for e-auction on 6th January, 2021.
I. FACTUAL MATRIX OF THE CASE:
Succinctly put, the facts of the case are as follows:
The petitioner, Smt. Sulochana Dash, applied for an LIG plot measuring approximately 1,250 sq. ft. under BDA’s Kalinga Nagar Plotted Development Scheme, 1991. She was provisionally selected under Registration No. KNL-965/1993 by Letter No.12536/AL dated 28 December 1994. The payment schedule required successive instalments of ₹4,000 and stipulated interest for delayed payment, with cancellation contemplated upon default of two consecutive instalments.
By Letter No.3080/AL dated 24 February 1997, BDA communicated the allotment of LIG Plot No. K4-548 in favour of the petitioner through a public lottery. The total cost of the plot was ₹32,900. The petition annexes receipts showing payments made from 1991 onwards, while the written notes of both sides proceed on the basis that ₹16,900 had been deposited by the petitioner by the date of cancellation.
BDA subsequently issued demand communications in January 1998 and May 1999 requiring payment of the balance amount with interest within fifteen days and warning that the allotment would otherwise be cancelled. The demand reflected a deposit of ₹8,900, whereas the petitioner maintained that she had deposited a larger amount. On 28 May 1999, she submitted a representation seeking reconciliation of the payments and additional time on account of illness.
By Letter No.6253/AL dated 7 October 1999, BDA cancelled the petitioner’s allotment on the ground of default in payment and called upon her to seek refund of the deposited amount by surrendering the original challans. The cancellation itself and the reason stated in the communication are undisputed, the legality, procedural fairness and underlying motivation of that cancellation remain contested.
Plot No. K4-548 was thereafter allotted to Opposite Party No.3, Smt. Kamala Kumari Pradhan. The parties, however, give materially different accounts of that allotment: the petitioner relies upon an application dated 15 July 1997 and an order dated 29 January 2000 to allege a direct allotment, whereas BDA maintains that the plot was allotted only after the petitioner’s cancellation, through a public lottery held on 16 October 2000 and communicated on 27 November 2000. The subsequent allotment is common ground, but its manner and legality are disputed.
After the cancellation, the petitioner deposited a further ₹16,000 in BDA’s bank account in March 2001 but the petitioner’s later representation refers to 23 March, while BDA records 27 March 2001. When added to the ₹16,900 already deposited, the amount corresponded to the original plot cost of ₹32,900. BDA did not restore the allotment, treating the post-cancellation payment as a unilateral deposit made without its authority. The petitioner’s representation dated 22 June 2001 was rejected on 21 July 2001 because the plot had already been allotted to another person.
The petitioner continued to seek restoration of Plot No. K4-548 or allotment of another plot. BDA informed her on 22 July 2010 that no plot was available under the old scheme; the matter was also taken before the BDA Adalat in 2013, followed by a communication dated 18 April 2014, and through representations to the Chief Minister and the Housing and Urban Development Department. Representations dated 20 April 2019 and 4 September 2020 sought re-allotment principally on the allegation that Opposite Party No.3 had not constructed on the plot. On 29 December 2020, the Lokayukta closed the petitioner’s complaint on account of the long delay and absence of any allegation of corruption against a public servant.
On 6 January 2021, BDA issued Notice No.555 inviting online applications for an e-auction of twenty-eight residential assets on 10 March 2021. The assets included three K4 plots in Kalinga Nagar measuring 1,250 sq. Ft.: K4-426, K4-1140 and K4-1306. The petitioner thereafter instituted the present writ petition seeking re-allotment of Plot No. K4-548 or, alternatively, allotment of one of the advertised LIG-sized plots. On 24 February 2021, the Court directed, as an interim measure, that if there was any scheme for allotment of plots in the Kalinga Nagar Plotted Development Scheme, one plot should be kept reserved for the petitioner.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
Learned counsel for the petitioner earnestly made the following submissions in support of his contentions.
The petitioner contends that the cancellation proceeded on an incorrect statement of her deposits. Although BDA’s demand reflected only ₹8,900, she asserts that ₹12,900 had already been deposited when the relevant demand was received and that ₹16,900 stood deposited before cancellation. She had asked BDA to reconcile its calculation and specify the correct balance, but the Authority neither corrected the account nor meaningfully responded before cancelling the allotment.
It is contended that the payment default was neither deliberate nor wilful. The petitioner had paid nearly half the plot cost before cancellation, sought limited additional time because of illness and subsequently deposited the remaining ₹16,000, thereby paying the complete original cost of ₹32,900. BDA received and continued to retain the entire amount without restoring the plot or effectively refunding the deposit, making strict reliance upon the original instalment schedule inequitable.
The cancellation is challenged as it is violating the principle of audi alteram partem. According to the petitioner, her acknowledged representation dated 28 May 1999 was not considered, no effective opportunity of hearing was provided and the allotment was cancelled despite her willingness to clear the correctly calculated balance. The action is therefore alleged to be arbitrary and procedurally unfair.
The petitioner alleges that the cancellation was engineered to confer an undue benefit upon Opposite Party No.3. She relies upon Opposite Party No.3’s plain application dated 15 July 1997, made after the original 1991 scheme had closed and without any fresh advertisement, followed by the purported allotment order dated 29 January 2000. Entertaining that application outside the prescribed scheme, cancelling the petitioner’s plot and then allotting the same plot to Opposite Party No.3 are alleged to disclose extraneous consideration, discriminatory treatment and violation of Article 14.
It is further contended that Opposite Party No.3 failed to construct a house on the plot despite the alleged requirement to complete construction and despite BDA’s successive public notices warning defaulting allottees of cancellation. BDA’s refusal to act against Opposite Party No.3, while having cancelled the petitioner’s allotment for delayed payment, is cited as further evidence of selective and unequal treatment.
The petitioner submits that BDA repeatedly rejected her request on the ground that no plot was available, but the e-auction notice dated 6 January 2021, disclosed three Kalinga Nagar K4 plots of the same 1,250 sq. ft. measurement. She, therefore, maintains that effective relief remains possible and Plot No. K4-548 may be restored if Opposite Party No.3’s allotment is invalidated, or one of the advertised plots may be allotted to her, particularly in view of the Court’s interim direction to reserve one plot if an allotment scheme existed.
The petitioner relies upon Anjana Saraiya v. State of Uttar Pradesh1, in order to substantiate that cancellation of a residential allotment may be set aside where delayed payment was attributable to genuine circumstances, the default was not wilful and the allottee was willing to pay an additional amount to compensate for the delay. She invokes the decision in support of equitable restoration or alternative allotment upon such financial terms as the Court considers appropriate.
III. SUBMISSIONS OF THE OPPOSITE PARTIES:
Per contra, the learned counsel for the Opposite Parties earnestly made the following submissions:
The opposite parties raise a preliminary objection to the maintainability of the petition because BDA, as a distinct authority, has not itself been impleaded, although its Vice-Chairman and Secretary have been arrayed as Opposite Party Nos.1 and 2. They further contend that the petition challenges a cancellation dated 7 October 1999 only in 2021, after more than two decades, and is therefore liable to be dismissed for gross delay and laches. Repeated representations cannot revive a stale cause of action or unsettle rights created in favour of a subsequent allottee.
BDA contends that the petitioner’s provisional selection was expressly governed by an instalment schedule requiring ₹4,000 payments on specified dates, interest upon delayed payment and cancellation upon consecutive defaults. Despite repeated opportunities and demand notices issued in January 1998 and May 1999, the petitioner failed to pay the balance within the stipulated period. Only ₹16,900 out of ₹32,900 had been deposited by the date of cancellation, and the contractual conditions therefore entitled BDA to cancel the allotment.
The representations made before cancellation did not, according to BDA, suspend the payment schedule or confer an indefinite extension. The cancellation letter dated 7 October 1999 expressly informed the petitioner that she could obtain a refund by surrendering the original challans. The subsequent deposit of ₹16,000 in March 2001 was made voluntarily through a bank challan, without any order or permission from BDA and after the petitioner knew that her allotment stood cancelled; consequently, it could neither revive the cancelled allotment nor create an enforceable right to the plot.
The opposite parties deny that Plot No. K4-548 was allotted to Opposite Party No.3 through favouritism or without a transparent process. Their case is that, after cancellation of the petitioner’s allotment, the plot was placed in a public lottery held on 16 October 2000 and was thereafter allotted to Opposite Party No.3, with the allotment communicated on 27 November 2000. Since third-party rights have long intervened and the plot is no longer available, restoration of that particular plot is said to be legally and practically impermissible.
BDA maintains that the petitioner’s grievances were repeatedly examined and rejected. Her restoration request was declined on 21 July 2001; the request for an alternative plot was rejected on 22 July 2010 because no plot was available under the old scheme; and the matter was subsequently considered in the BDA Adalat and through communications to her husband and other government authorities. The allegation that her representations were wholly ignored or that no reasons were ever communicated is therefore denied.
Even if Opposite Party No.3 has violated a construction condition, BDA contends that such violation would not automatically entitle the petitioner to re-allotment. Any property resumed or cancelled for breach must be dealt with under the BDA Property (Management and Allotment) Regulations, 2015 and allotted through the prescribed auction process. The petitioner may participate in such an auction on the same terms as other applicants but cannot claim a preferential allotment based upon the cancelled 1990s transaction.
The notice dated 6 January 2021 was, according to the opposite parties, an invitation to participate in an e-auction of existing assets and not a revival or continuation of the Kalinga Nagar Plotted Development Scheme under which the petitioner had been selected. The Court’s interim direction was expressly conditional upon BDA floating an allotment scheme, and no such scheme was floated. The advertised properties therefore cannot be allotted directly to the petitioner outside the auction process.
(viii) Finally, the opposite parties contend that the 1991 scheme stands exhausted, no plot remains available for allottees whose allotments were cancelled decades ago, and public property cannot now be transferred at the historical price of ₹32,900. They assert that the present market value would exceed ₹75 lakh and rely upon Rule 54 of the Development Authority Rules, 1983 to submit that BDA cannot dispose of public property below market value. The relief sought would consequently defeat the applicable disposal regime and confer an unjustified private benefit upon the petitioner.
IV. COURT’S ANALYSIS AND REASONING
Heard learned counsel for the parties and perused the materials placed on record.
The controversy lies within a narrow compass. The questions that arise are whether the cancellation of the petitioner’s allotment dated 7 October 1999 calls for interference under Article 226 of the Constitution, whether the subsequent allotment in favour of Opposite Party No. 3 is vitiated by arbitrariness or favouritism, and whether the petitioner can claim one of the plots subsequently offered by BDA through e-auction.
At the outset, the objection regarding non-impleadment of BDA does not merit acceptance. The Vice-Chairman and the Secretary of BDA have been arrayed in their official capacity. A counter-affidavit has been filed placing BDA’s entire defence before this Court, and no prejudice on account of the description of the parties has been demonstrated. The petition, therefore, cannot be rejected on that technical ground. This, however, does not answer the more fundamental question whether the petitioner has approached this Court within a reasonable time and has established any subsisting right.
The cancellation was communicated on 7 October 1999. The petitioner’s representation dated 22 June 2001 was rejected on 21 July 2001. Even if the latter date is treated as the starting point, the present writ petition, instituted only after the e-auction notice of 6 January 2021, was brought nearly two decades later. No satisfactory explanation has been offered for this interval.
The representations made by the petitioner in 2010, 2013, 2014, 2019 and 2020 do not extend the cause of action. A person cannot keep an otherwise concluded dispute alive merely by submitting successive representations. As explained by the Supreme Court in Union of India v. M.M. Sarkar2, consideration or rejection of a representation concerning a stale claim does not furnish a fresh cause of action. The Court held as follows:
“When a belated representation in regard to a `stale' or `dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the `dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. A Court or Tribunal, before directing `consideration' of a claim or representation should examine whether the claim or representation is with reference to a `live' issue or whether it is with reference to a `dead' or `stale' issue. If it is with reference to a `dead' or `state' issue or dispute, the court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect.”
If we draw parallels of the aforementioned precedent with the facts of the present case, the cancellation in the present case was a completed act and not a continuing wrong.
The delay assumes greater significance because the disputed plot was subsequently allotted to Opposite Party No.3. The Court is, therefore, not being asked merely to examine an old administrative order. It is being invited to unsettle an allotment under which third-party rights have remained undisturbed for more than twenty years. Relief under Article 226 is discretionary, and such settled rights cannot ordinarily be reopened at the instance of a person who remained out of Court for an unexplained length of time.
Since the parties have also addressed the Court on the legality of the cancellation, it is appropriate to examine the matter on merits.
The allotment letter required the petitioner to deposit the consideration in successive instalments. It also made clear that default in payment of two consecutive instalments would expose the allotment to cancellation. The total price was ₹32,900. On the petitioner’s own showing, only ₹16,900 had been deposited by the date of cancellation. A sum of ₹16,000, constituting nearly one-half of the consideration, thus remained unpaid.
Before cancelling the allotment, BDA issued demand communications in January 1998 and May 1999. The latter communication required the petitioner to clear the outstanding amount with interest within fifteen days and expressly warned her of the consequence of non-payment. It is not disputed that the balance was not paid within the stipulated period.
The petitioner is justified in pointing out that one of BDA’s demands reflected a deposit of only ₹8,900, whereas she claimed to have deposited ₹16,900. She had, in fact, raised this discrepancy in her representation dated 28 May 1999. That discrepancy ought to have been reconciled by BDA. It does not, however, alter the result. Even if the petitioner’s figure of ₹16,900 is accepted in full, a further sum of ₹16,000 remained payable. Her request for additional time on account of illness did not create a contractual or statutory right to an indefinite extension.
The submission founded on violation of natural justice also does not persuade this Court. This principle depends upon the governing statutory and factual setting. Natural justice does not invariably require an oral hearing or a second notice in every contractual allotment.
In the present case, the consequence of default had been incorporated in the allotment terms. BDA thereafter issued two demand notices, the latter containing a specific warning of cancellation. The petitioner responded to the notice and was thus aware both of the demand and of the proposed consequence. More than four months elapsed between her representation and the cancellation. The cancellation communication could undoubtedly have dealt with her representation more expressly, but that omission has caused no demonstrated prejudice when the substantial default remained undisputed even according to her own account.
The deposit of ₹16,000 made in March 2001 does not improve the petitioner’s case. By then, the allotment had stood cancelled for approximately seventeen months. More importantly, according to BDA’s record, the disputed plot had already been included in the lottery held on 16 October 2000 and allotted to Opposite Party No.3 by communication dated 27 November 2000. A unilateral deposit made after cancellation, and after the plot had been allotted to another person, could not revive the earlier allotment without an order of restoration by BDA. The rejection of the petitioner’s representation on 21 July 2001, therefore, cannot be termed arbitrary.
The decision in Anjana Saraiya (supra) does not carry the petitioner’s case further. In that case, the allottee deposited the entire balance together with interest before the cancellation notice was served upon her, approached the High Court without delay and offered an additional amount as compensation. Most significantly, the plot remained vacant and had not been allotted to any third person.
The facts here are materially different. The petitioner deposited the balance long after cancellation, after the subsequent allotment had been made, and approached this Court almost twenty years after the rejection of her representation. Anjana Saraiya (supra) was an exercise of equitable jurisdiction upon its peculiar facts. It does not lay down that every post-cancellation payment obliges a development authority to restore an allotment notwithstanding delay and intervening rights.
BDA has also relied upon Ghaziabad Development Authority v. Machhla Devi3. The said decision arose from a different procedural setting, where a subsequent writ order had effectively nullified an earlier judgment of a coordinate Bench upholding the cancellation. There is no such earlier adjudication in the present case. The decision is, therefore, not a direct authority on the question of delay here. It nevertheless emphasises that judicial discretion cannot be employed to regularise rights in public property in disregard of the governing allotment conditions and settled interests.
The allegation that the petitioner’s allotment was cancelled to accommodate Opposite Party No.3 is equally unsupported. Reliance has been placed upon an application allegedly made by Opposite Party No.3 in 1997. The existence of such an application, without anything further, does not establish that the petitioner’s cancellation in 1999 was engineered for her benefit. The cancellation is independently supported by the petitioner’s admitted payment default.
BDA’s case is that the plot was placed in a public lottery only after cancellation and was allotted to Opposite Party No.3 pursuant to the draw held on 16 October 2000. No material has been produced to show manipulation of the lottery or any nexus between Opposite Party No.3 and the officers who took the impugned decision. Mala fides must be founded upon specific pleadings and cogent material; they cannot be inferred from suspicion or chronology alone. This Court, therefore, finds no basis for the allegation of favouritism.
The alleged failure of Opposite Party No.3 to construct upon the plot also does not revive the petitioner’s cancelled allotment. Whether Opposite Party No.3 has breached any condition of allotment is a matter for BDA to examine under the applicable regulations. Even if such a breach is ultimately established, the petitioner would not acquire an automatic right to the plot. Any resumed property would have to be dealt with by BDA in accordance with the law and the procedure then governing its disposal.
The alternative prayer for allotment of Plot Nos. K4-426, K4-1140 or K4-1306 is also misconceived. These plots were offered through the e-auction notice dated 6 January 2021 under a fresh disposal process. The petitioner’s registration under the 1991 scheme does not confer upon her any preferential right over assets subsequently offered under a different scheme.
Rule 54 of the Orissa Development Authorities Rules, 1983 prohibits disposal of property belonging to a development authority below its market value. A direction to allot one of the newly advertised plots to the petitioner at the price fixed under the 1991 scheme would not only run contrary to Rule 54 but would also place her in a position of advantage over other eligible applicants. The Court cannot, in exercise of its writ jurisdiction, bypass a publicly notified auction and create an individual mode of allotment unsupported by the governing rules.
The interim direction requiring reservation of one plot was intended only to preserve the subject matter during the pendency of the proceedings. An interim arrangement does not create a substantive right where none otherwise exists. Once the petitioner’s challenge fails on merits, the interim protection cannot be converted into a permanent reservation or a special lot for her benefit.
V. CONCLUSION:
In view of the foregoing discussion, this Court is of the considered opinion that the cancellation dated 7 October 1999 was founded upon the petitioner’s failure to comply with the payment schedule and does not suffer from any arbitrariness warranting interference under Article 226 of the Constitution. The unexplained delay of nearly two decades and the subsequent creation of third-party rights constitute additional and independent grounds for declining relief.
Consequently, neither Plot No. K4-548 nor any of the plots advertised for e-auction can be directed to be allotted to the petitioner. She shall, however, remain at liberty to participate in any future auction or allotment process for which she is otherwise eligible, strictly on the same terms as every other applicant. This observation shall not be construed as conferring any preference in her favour.
Accordingly, the Writ Petition being devoid of merit is dismissed.
Interim order, if any, passed earlier stands vacated.