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Rishabh Mishra v/s Bhopal Development Authority & Another

    Writ Petition No. 22357 of 2019

    Decided On, 20 January 2021

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MRS. JUSTICE NANDITA DUBEY

    For the Appearing Parties: Akshat Bajpai, Kapil Duggal, Advocates.



Judgment Text

1. This petition takes exception to the orders dated 26.07.2019 (Annexure P-1), 29.07.2019 (Annexure P-2), 03.10.2019 (Annexure P-3, P-4 & P-5), passed by respondent No.2/Bhopal Development Authority, whereby the allotment of Lawyers' Chamber Nos. 358, 357, 355, 354 and 353, in favour of petitioner was cancelled and the registration amount was forfeited.

2. The Bhopal Development Authority (for brevity 'BDA') published an advertisement inviting offers for allotment of Lawyer's Chambers at Arera Hills, District Court Bhopal, wherein prospective candidates were called upon to apply for allotment of chambers. Petitioner submitted five separate applications for allotment of Chamber Nos. 353, 354, 355, 357 and 358 alongwith the total registration fees of Rs. 10,49,410/- for aforementioned five chambers on 04.11.2012. The BDA vide allotment order dated 13.12.2016, informed the petitioner that he has been allotted five chambers as applied for on the third floor. As per the allotment order, the balance amount was to be deposited by 13.01.2017, under certain terms and conditions. The petitioner, however, did not deposit the balance amount in pursuant to the allotment, within the stipulated period. The BDA vide five separate notices dated 10.06.2019, informed the petitioner to deposit the balance amount with respect to each of allotted chamber within a period of 10 days, else the allotment would be cancelled and the registration fees would be forfeited. On receipt of the notices, the petitioner vide letter dated 06.07.2019 and again on 13.09.2019 requested the BDA to cancel four of his allotments and return the registration fees as he intended to keep only one chamber. The BDA, however, cancelled all the allotments made in favour of the petitioner and forfeited the registration fees vide orders dated 26.07.2019, 29.07.2019 and 03.10.2019. Being aggrieved by the aforesaid orders of cancellation, the petitioner has approached this Court by way of present petition.

3. This Court vide order dated 11.12.2019 was pleased to direct the BDA to retain one chamber subject to petitioner's depositing the entire cost of one chamber. However, the order was not complied and as reflected from the order sheet dated 12.10.2020, a plea was raised that the same could not be complied as the details of payments were not made available to the petitioner.

4. The contention of Shri Akshat Bajpai, learned counsel for the petitioner is that the orders impugned suffers from vice of arbitrariness, as no opportunity of hearing was ever granted to the petitioner before canceling the allotments. It is further canvassed that Rule 6(iv) of M.P. Vikas Pradhikarano Ki Sampatiyon Ka Prabandhan Tathan Vyayan Niyam, 2013, itself permits a person to bid for more than one premises on purchase of separate bid forms, if the applicant wishes to increase his/her chance of allotment. It is stated that though the petitioner has applied for five chambers to increase the chances of allotment, but as per the terms and conditions of the advertisement, only one member from a family can be allotted a chamber. Under the circumstances, the BDA was duty bound to adopt the strict guidelines and reject the remaining four applications filed by the petitioner. It is submitted that the action of respondent is arbitrary, capricious and malafide as despite receipt of notice dated 06.07.2019, requesting to cancel the other four allotments and to return the registration fee, the authority has cancelled all the allotments issued in his favour.

5. The stand of respondents/BDA is that the petitioner submitted five applications, as the number of applications received by the BDA were less than the number of chambers to be allotted, all his applications were allowed and the petitioner was informed vide letter dated 03.12.2016 regarding the allotment of five chambers. However, the petitioner did not object to the same nor submitted any application showing his intent to retain only one chamber and to withdraw his application for the other four allotments. Further, despite being served various notices from 2017 to 2019, annexed with the reply as Annexure R/5, R/6 and R/7, he neither deposited the balance amount nor replied to any of the notices. Even after the publication of notice in the Newspaper 'Dainik Bhaskar' and 'Patrika', dated 8.06.2019 and 09.06.2019 respectively and despite various opportunities, the petitioner failed to deposit the balance amount, hence in terms of clause 7 of the allotment order, all of his allotments were cancelled and the registration fees was forfeited. It is further stated that petitioner's application dated 06.06.2019 for withdrawal/cancellation of remaining four allotments and refund of registration fees could not be considered in view of clause 7 of the terms and conditions of allotment letter.

6. The parties confined their arguments to the extent indicated hereinabove.

7. I have heard the learned counsel for the parties and perused the record.

8. The relevant terms and conditions of the application as well as the allotment letter, which would have a bearing in deciding the present matter are extracted herein below:-

“LANGUAGE”

9. The terms and conditions for disposal of property at the fixed rate, which are also a part of the application form, specifically mentioned that only one application from one family/person will be entertained and violation of this condition may result in rejection of all his applications. Further clause 7 of the terms and conditions as aforementioned and clause 7 and 22 of the demand- cum-allotment letter indicate the date by which balance payment was required to be made. It further clearly states that non-payment of balance amount would entail cancellation of allotment and the forfeiture of the registration fees. These terms and conditions for disposal of property at fixed rate by necessary implication not only makes applicants ineligible for submitting more than one application/or applying for allotment of more than one chamber, but also prohibits the BDA from allotting more than one chamber to an applicant. Record shows that the petitioner has consciously signed these applications and affidavits after going through the aforesaid terms, hence he is bound by the terms of allotment.

10. The contention of Shri Akshat Bajpai that multiple applications were submitted to enhance his chance of allotment is not justified by his actions. Record shows that even after receipt of 5 allotment letters, petitioner never objected to or communicated to respondent/BDA regarding his intention for retaining only one chamber and to surrender/cancel the allotment of four remaining chambers. It is only after the notices issued for cancellation and forfeiture of amount that he moved an application on 06.06.2019, i.e., after a period of more than two years of the initial allotment.

11. Thus, in absence of any reasonable explanation as to why petitioner accepted and enjoyed these 5 allotments, without taking any action for their cancellation at the relevant time, leads to the conclusion that action of petitioner was not bonafide and he driven by his greed with dishonest intention continued with the aforesaid allotments. This Court vide order dated 11.12.2019, directed the BDA to retain one chamber subject to petitioner's depositing the entire cost of one chamber. However, as evident from the record, petitioner failed to avail of the said concession and did not deposit any amount till 12.10.2020. Petitioner's contention that details of payment were not made known to him lacks bonafide as the notices issued to petitioner clearly mentioned the balance amount to be deposited by the petitioner.

12. This Court cannot also lose sight of the admitted fact that by entertaining multiple applications of the same person, five chambers have been allotted to him dehors the terms and conditions of the application. BDA being a statutory authority cannot give largesse to any person at sweet will and whims of officers. Its decision and action must be founded on rules and regulations as prescribed. Even if the applications received by the BDA were less in number than the chambers available, more than one chamber could not have been allotted to the petitioner. As on scrutiny of the application, it is evident that details furnished by the petitioner regarding his residence and name of parents was the same. Under the circumstances, after scrutinizing the forms, the authority ought to have either allotted only one chamber or rejected all of his applications as mentioned in clause 4 of the terms and conditions of the application form. It is apparent that procedure adopted by BDA was not transparent and suffers from material irregularity.

13. On the facts and circumstances of the case, when both the parties are at fault, the question is whether all the allotments be cancelled and the entire amount be forfeited? The terms agreed between the parties have to be considered while considering the question of forfeiture as obviously. The power of forfeiture is intended to prevent frauds and malpractice in allotment and in case of positive finding in that behalf, Courts would refrain from interfering in the matter.

14. The Supreme Court in the case of Greater Mohali Area Development Authority and others Vs. Manju Jain and other, (2010) 9 SCC 157, has referred to the case of Teri Oat Estates (P) Ltd. Vs. UT, Chandigarh and other, (2004) 2 SCC 130, wherein it has been held :-

"Cancellation of an allotment should be a last resort. The allotment should not be cancelled unless the intention or motive on the part of the allottee in not making due payment is evident. The drastic power of resumption and forfeiture should be exercised in exceptional cases but that does not mean that the statutory rights conferring the right on the authority should never be resorted to. In exceptional circumstances, where the allottee does not make any payment in terms of allotment, the order of cancellation should be passed. Sympathy or sentiment by itself cannot be a ground for passing an order in favour of allottees by the courts nor can an order be p

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assed in contravention of the statutory provisions." 15. On facts, petitioner had all the opportunity to ask for cancellation and refund of amount when he received the 5 allotment orders, however, instead of taking any such steps, he tried to play smart and kept all the five chambers engaged for over a period of two years, without making any payment other than the registration amount. A person who pleads for equity has to act fairly. Since, the petitioner did not act fairly, he is not entitled to any sympathetic consideration. The BDA was also at fault and has acted arbitrarily. Hence, no interference is required in the order of cancellation of allotment. However, on the ground of proportionality and to serve interest of justice, instead of forfeiting the entire registration amount (for 5 allotments), fifty percent of the total amount deposited by the petitioner as registration fee is forfeited, rest of the amount be refunded to the petitioner, however, it will carry no interest. This may not, however, be treated as a precedent. 16. Petition is partly allowed to the extent indicated hereinabove.
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