ADWAITA CHARAN HOTA Vs. BHUBANESWAR DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) THIS writ petition has been filed with a prayer to quash the letter dated 13.06.2005 under Annexure-4 passed by the Allotment Officer-I, Bhubaneswar Development Authority, Bhubaneswar (for short, "B.D.A.") intimating the petitioner to pay Rs.19,76,755.00 towards cost of the unit and Rs.11,510.00 towards arrears of ground rent, Municipal Tax, Electricity dues and P.H. dues as mentioned in the said letter by 25.06.2005 failing which the allotment will be treated as cancelled without any further correspondence. Further prayer of the petitioner is to issue a writ of mandamus to opposite parties directing them to allot House No.C-85 under Pallaspalli Duplex Housing Scheme in favour of the petitioner for a sum of Rs.12,90,950.00 as fixed on 01.01.2005.

(2.) PETITIONER 's case in nut-shell is that the B.D.A. floated a scheme called 'Pallasapalli Duplex Housing Scheme' for the purpose of providing duplex houses with various facilities to different persons. At the initial stage of the scheme, the estimated cost of each house was fixed at Rs.2.25 lakh. However, it was provided in the brochure that in case the actual cost of the construction exceeds the estimated cost due to escalation in the price of labour and materials or due to any other reason, the allottee shall pay such excess amount over and above the cost specified. Accordingly, various houses were constructed under the said Palasapali Duplex Housing Scheme. Originally allotted House No.C-85 was cancelled as the original allottee failed to make necessary deposit with the B.D.A. in time. Therefore, the opposite parties decided to allot the said house in favour of one Mr. B. Khadenga at the cost of Rs.12,90,850 on 01.01.2005. Since the B.D.A. has taken a decision for allotting the said house in favour of Mr. B. Khadenga prior to obtaining necessary instruction from the Chairman, B.D.A., the B.D.A. did not proceed in the matter. The petitioner after coming to know about the above fact applied to the Chairman, B.D.A. for allotment of the said Duplex House No.C-85 in his favour on 25.04.2005. Along with the said application, the petitioner deposited a sum of Rs.3.00 lakh. On 06.04.2005 a communication was issued by the B.D.A. informing the petitioner that he has been provisionally selected for allotment of House No.C-85 under the Palasapalli Duplex Housing Scheme. In the said communication, the petitioner was also informed that the cost of the said house has been fixed at Rs.22,82,719.00. Pursuant to the said communication dated 06.04.2005, the petitioner made a representation to the Chairman, B.D.A. indicating therein the unfair and discriminatory policy adopted by the B.D.A. In the said representation, the petitioner also highlighted that in all projects when the question of re-allotment comes up after cancellation, the B.D.A. has been regularly allotting the flats, land and building to the various persons by imposing penal interest on the cost of the old project. Accordingly, the cost of the said house was fixed at Rs.12,90,950.00 on 01.01.2005 for the purpose of allotment to Mr. B. Khadenga. While the matter stood thus, on 13.06.2005 the Allotment Officer-opposite party No.2 issued the impugned letter under Annexure-4 directing the petitioner to deposit Rs.19,76,755.00 excluding earlier deposit of Rs.3.00 lakh. Petitioner was also required to deposit Rs.11,510.00 towards ground rent, Municipal tax, electricity charges and P.H. dues. Hence, the present writ petition.

(3.) MR . D. Mohapatra, learned counsel appearing for the B.D.A. reiterating the stand taken in the counter affidavit submitted that Palaspalli Housing Scheme is one of the oldest schemes promoted by B.D.A. during 1985. A number of duplex houses were constructed, brochures were issued and houses were allotted to the selected allottees at the rate fixed in the brochure. Some of the allottees did not clear up their instalment dues as per the schedule for which the authority cancelled the allotment and took over possession. The original allottee of House No.C-85 did not clear up the dues for which the allotment was cancelled. The petitioner after coming to know about the aforesaid fact submitted suo motu applications which were received on 22.06.2004 and 20.12.2004 for allotment of the said house, wherein he has undertaken that the cost which will be fixed by the Authority of B.D.A. as per its norms shall be accepted by him. In the meantime, 20 years have elapsed from the date of construction of the project. In order to assess the actual valuation of the aforesaid house, a Cost Assessment Committee was constituted. The Committee taking into consideration of various aspects assessed the valuation of the house in question at Rs.22,82,719.00. The Authority issued letter dated 13.06.2005 vide Annexure-4 asking the petitioner to deposit the balance cost and other dues as mentioned therein by 25.06.2005 failing which the allotment shall be treated as cancelled and no further correspondence will be entertained for extension of time for making payment and for consideration of any other request over the matter. The house was not allotted in favour of Mr. B. Khadenga after cancellation of the allotment. The petitioner at the time of filing of the application had deposited Rs.3 lakh. Since the petitioner failed to deposit the amount as required under Annexure-4, the authorities deemed/treated the allotment to have been cancelled. Subsequent to such cancellation, the authority has liberty to allot the house to any other intending purchasers at the rate fixed/quoted by the Authority. Once the property worth higher valuation and there being persons agreeable to purchase the said house at such valuation, any condition of allotment of the house at a much lower price on the basis of the price fixed as on 01.01.2005 merits no consideration. The Assessment Committee took note of all relevant aspects and calculated the actual price of the structure including land as on 07.03.2005 which has been approved by the authority in its resolution No.2/90 dated 14.03.2005. The cost Assessment Committee took note of the valuation of the land as per the report of D.S.R. with overhead. As on date, valuation of the structure will be much more than assessed by the Committee as on 07.03.2005. The structure being a finished house, it cannot be compared with that of the valuation made for the core house. The Authority is not bound to sell the property at a lesser price incurring loss to itself. The authority is otherwise ready and able to sell the property with much higher price to the prospective buyers. If the parties are ready to purchase the house at a higher price, alienation of the property in favour of the petitioner at a much lower price would cause huge financial loss to the Authority. The Authority should be allowed to refund the amount deposited by the petitioner on deduction of the dues applicable to defaulted/cancelled allottees and further the Authority be allowed to sell away/allot the house to any prospective allottees in view of cancellation of allotment made in favour of the petitioner. He further submitted that it is a posh area and the houses allotted in favour of Smt. Jyotsnarani Mohapatra and Smt. Nandita Thakur are different houses in different locations. It is further submitted that once the petitioner expresses to accept the house in question as per the valuation made by the B.D.A., he should not challenge the cost fixed by the Assessment Committee unless it is arbitrary or unreasonable. Mr. Mohapatra also prays for vacation of the interim order passed in this case. Concluding his argument, Mr. Mohapatra submitted that the prayer of the petitioner merits no consideration and the writ petition is liable to be dismissed with exemplary cost.