PRATAP SINGH RAY JAGADEV Vs. BHUBANESWAR DEVELOPMENT

JUDGEMENT

(1.) THE case of the petitioner in this writ petition is that the Bhubaneswar Development Authority (for short, 'the BDA') allotted two houses, HIG 1/69 and HIG 1/70 in the Kapila Prasad Housing Scheme on 18.1.1994 to the Opp. Party No. 2. As per the said housing scheme, the Opp. Party No. 2 deposited a sum of Rs. 4,65,408/ with the BDA towards the earnest money. Under the said scheme, the sale price of each of the house was fixed at Rs. 3,30,000/ for out right purchase and at Rs. 4,84,500/ for purchase in instalments. The Opp. Party No. 2 opted to pay the price in instalments. The Opp. Party No. 2 took possession of the two houses on 13.10.1999 but he found several deficiencies in the two houses. He wrote to the Vice Chairman of the BDA on 23.10.1999 to make necessary repairs and replacement but the repairs and replacement were not done by the BDA. The further case of the petitioner is that the Opp. Party No. 2 appointed Opp, Party No. 3 as authorised agent for entering into an agreement of sale/house rent and to receive advance payment in cash from the intending purchaser/tenant by the letter of authority dated 31.7.1999. But since the two houses were not habitable, the Opp. Party No. 2 persuaded the petitioner to reside in the two houses and make necessary repairs and continue to maintain the two houses. The Opp. Party No. 2, however, made it clear to the petitioner that he need not pay any rent but he has to carry on the repairs and maintain the two houses and as and when the Opp. Party No. 2 decides to sell the two houses, he shall give preference to the petitioner. In view of the said promise made by the Opp. Party No. 2, the petitioner occupied both the houses in January, 2000 and spent Rs. 50,000/ towards repairs and replacement in the said two houses. The Opp. Party No. 2 then requested the petitioner to remove all his articles stored in HIG 1/69 to enable the Opp. Party No. 2 to carry on some necessary repairs. The petitioner removed all his articles stored in the said HIG 1/69 and handed over the key to the Opp. Party No. 2 in April, 2000. The petitioner, however, continued to occupy house HIG 1/70. The petitioner got electricity and water connection in the name of the Opp. Party No. 2 in the said house at his own cost and as per the agreement, the petitioner did not pay any rent to the Opp. Party No. 2 for his occupation. In December, 2000, however, the Opp. Party No. 2 informed the petitioner that he wants to dispose of both the houses to meet the demands of the BDA. In January, 2001, the Opp. Party No. 3 acting as the agent of the Opp. Party No. 2 asked the petitioner to pay him Rs. 50,000/ as advance for purchase of the house. The petitioner arranged a sum of Rs. 50,000/ and paid the same to the Opp. Party No. 3 on 16.1.2001 and the Opp. Party No. 3 received the same with the premise to sell the house to the petitioner as soon as no objection certificate is received from the Opp. Party No. 1 and a document was also signed by the Opp. Party No. 3 a copy of which has been annexed to the writ petition as Annexure 5 in which the Opp. Party No. 3 has acknowledged the receipt of a sum of Rs. 50,000/ from the petitioner for and on behalf of the Opp. Party No. 2 as advance payment in respect of hire out and/or agreement to sell of either of his houses HIG 1/69 or HIG 1/70 in the BDA Colony at Kapila Prasad. Thereafter, notice dated 28.9.2001 was served on the Opp. Party No. 2 by the Estate Officer, BDA that he was in unauthorised occupation of the premises HIG 1/69 and HIG 1/70 and asking him to show cause as to why the Opp. Party No. 2 will not be evicted from the said premises. The Opp. Party No. 2 was, thereafter, given notice dated 15.10.2001 by the Estate Officer, BDA to appear for hearing failing which the matter will be disposed of ex parte. Thereafter, by order 'dated 31.1.2002 passed under Sub section (1) of Section 5 of the Orissa Public Premises (Eviction of Unauthorised Occupants) Act, 1972, the Estate Officer, BDA has ordered that the petitioner and all persons who are in occupation of the said two houses will vacate the same within fifteen days. By a subsequent letter dated 28.5.2003, however, the Opp. Party No. 2 was given time to deposit the outstanding amount for the said two houses amounting to Rs. 9,79,991/ till June, 2003. The petitioner has alleged that the very purpose of the said letter dated 28.5.2003 of the BDA to the Opp. Party No. 2 is to help the Opp. Party No. 2 to arrange a purchaser of the said two houses at a higher price and sell the said two houses to make illegal gains. After getting the said letter dated 28.5.2003 the Opp. Party No. 2 sent the Opp. Party No. 4 to inspect the houses. The Opp. Party No. 4 thereafter agreed to purchase the houses and the Opp. Party No. 2 executed a Power of Attorney in favour of Opp. Party No. 4 to transact all matters dealing with the said house with the BDA and take over possession of the houses and in particular, house HIG 1/70 by evicting the petitioner by any means. Aggrieved, the petitioner has filed this writ petition for directing the BDA to accept the arrear dues in respect of the house HIG 1/70 in Kapil Prasad BDA Colony and other dues, if any, as per norms of the BDA and transfer/allot the said house in the name of the petitioner. The petitioner has also prayed for directing the BDA not to accept any amount either from the Opp. Party No. 2 or from any other person including Opp. Parties 3, 4 and 5 and not to issue no objection certificate in favour of any person other than the petitioner and not to evict the petitioner from the house.

(2.) ON 22.7.2003 the Court after hearing Mr. D.P. Sarangi, learned counsel for the petitioner issued notice to the Opp. Parties, both in the writ petition and Misc. Case No. 6689 of 2003 in which a prayer has been made for interim orders during the pendency of the writ petition. The Court also passed orders on 22.7.2003 directing that in the meanwhile, status quo will be maintained with regard to possession in respect of House No. 1/70, Kapila Prasad, BDA Colony. After receiving the notice, Misc. Case No. 8765 of 2003 has been filed by the Opp. Party No. 2 for vacating the said order of status quo.

(3.) MR . B. Rath, learned counsel for the Opp. Party No. 2, on the other hand, relying on the counter affidavit filed on behalf of the Opp. Party No. 2, submitted that the Opp. Party No. 2 had defaulted in making payment of the instalment and has become a defaulter but by now he has cleared the entire outstanding dues of the BDA and there is nothing to be paid to the BDA. He further submitted that the Opp. Party No. 2 has already become the absolute owner of the two houses and has been accepted as such by the BDA. He also submitted relying on the averments made in the counter affidavit filed by the Opp. Party No. 2 that the petitioner had some difficulties regarding accommodation of his family at Bhubaneswar and requested the Opp. Party No. 3 who is intimately known to him that he and his family be allowed to reside temporarily in the house H1G 1/70 and to keep his belongings in the HIG 1/69. The Opp. Party No. 3 realising the helpless condition of the petitioner allowed him to stay in HIG 1/70 and to keep his belongings in HIG 1/69 without the knowledge of the Opp. Party No. 2. When the Opp. Party No. 2 came to know of this arrangement, he asked the Opp. Party No. 3 to ask the petitioner to vacate the houses but the petitioner did not vacate the same on one plea or the other. Ultimately, the petitioner removed his belongings from HIG 1/69 but did not vacate HIG 1/70 despite assurances made by him from time to time. The Opp. Party No. 2 has, in the meanwhile, entered into an agreement with the Opp. Party No. 5 for sale of the house HIG 1/70 but on account of the ex parte interim order of status quo passed by this Court, the petitioner is not vacating the house and in the circumstances, the sale cannot be effected in favour of the Opp. Party No. 5. Mr. Rath vehemently submitted that the Opp. Party No. 2 had at no stage promised to sell or give on tenancy any of the two houses to the petitioner. He submitted that it is well settled that where there are factual disputes between the parties and where the dispute is a private dispute between two private parties, a writ petition under Article 226 of the Constitution is not maintainable. He argued that this is a fit case in which the High Court should dismiss the writ petition and vacate the interim order of status quo.