A Single Judge Bench of Justice B.R. Sarangi that the Odisha Co-operative Housing Corporation have committed no irregularity and illegality in not allotting the plot.
The petitioner, an advocate by occupation, filed this writ petition seeking to declare the proceeding order of 04.05.2020 as illegal, arbitrary and unconstitutional, and issue direction to opposite party no. 3 to allot a plot in favour of him.
The facts of the case, in hand, are that the Managing Director of Odisha Co-operative Housing Corporation Ltd. issued an advertisement In January 2013 inviting applications for the sale of 18 vacant plots. The advertisement specified that the applicants, indicating their choice of the plot shall submit a booking amount of Rs. 50,000/- and the mode of allotment would be on a “First come first serve” basis. The Managing Director, Odisha Co-operative Housing Corporation Ltd. reserved the right to accept or reject any application submitted without assigning any reasons.
The petitioner submitted his application along with a demand draft of Rs. 50,000/ in favor of opposite party no. 3, which was duly received. After receipt of his application along with the fees, the petitioner did not receive any communication with regard to his selection or rejection of allotment of plot. The petitioner waited from 2013 to 2016, but no intimation was followed.
The petitioner, in January 2014 submitted a representation to opposite party no. 3, but no reply came. Consequentially, against such inaction, the petitioner approached the court in 2016, where the court directed the opposite party no. 3 to consider the application and dispose of the representation of 2014. Though the said order was communicated, the opposite party no. 3 did not give any intimation to the petitioner. After another order of a court in 2017, the opposite party no. 3 issued a letter and a cheque of Rs. 50,000/- in favor of the petitioner returning the money received.
The petitioner contended that he kept quiet for six years, and the opposite party returned money without any interest and without allotting any plot in his favour. Therefore, opposite party no. 3 has acted arbitrarily and unreasonably.
The counsel for State contended that the petitioner received back the money deposited by him, and he cannot turn around and claim the plot. No contract subsisted between the parties so as to claim the benefit.
The Court, after hearing the parties, opined that on perusal of advertisement, it is clear that the mode of allotment would be on “First come first serve” basis. The order passed by the Odisha Co-operative Housing Corporation Ltd, made it evident that the Corporation allotted 18 plots to the applicants from 1 to 18 and, the petitioner’s name was at no. 32. Therefore, he was not eligible for allotment of plots.
The court alleged that, the claim of the petitioner that having retained his money for a period of six years, he was entitled to get the plot under the scheme was not sustainable in the eyes of law. More particularly, when the booking money was refunded and the petitioner acknowledged the same, he cannot say that the authority had committed any irregularity and illegality in not allotting the plot. The entire action is hit by principle of estoppel.
Estoppel is based on the principle that it would unjust, if a person intentionally by conduct or in any other manner has induced other person to believe and act upon such a representation, neither he or those representing can in a subsequent court proceeding deny the truth.
In B.L. Sreedhar v. K.M. Munireddy, the apex Court held that “Estoppe”, commeth of a French work “estoupe” from whence the English word stopped and it is called an “estoppel”, or conclusion, because a man’s owne act or acceptance stoppeth or closeth up his mouth to allege or plead the truth.
It is further held that “Estoppel” is based on the maxim allegans contraria non est audiendus (a person is not to be heard to allege the contrary), and is that species of presumption “juries et et jure” (absolute or conclusive or irrebuttable presumption), where the fact presumed is taken to be true, not as against all the world, but against a particular party, and that only by reason of some act done, it is in truth a kind of agrumentum ad hominem.
In Mahindra and Mahindra Ltd. v. Union of India, the apex Court held that “estoppel‟ canarise only if a party to a proceeding has altered his position on thefaith of a representation or promise made by another.
It is not to be forgotten that the advertisement clearly stipulated that the plot would be allotted on “First come first serve” basis. Therefore, on the basis of applications received if the chronology was maintained and the petitioner’s name was found place at no. 32, it cannot be said that illegalities and irregularities have been committed by opposite parties.
With regard to the allegations of retention of money for six years, for that the petitioner has alternative remedy to approach the appropriate forum claiming interest.
The Court refused to interfere with the order and disposed the writ petition.