Estoppel can only arise if a party to a proceeding has altered his position on the faith of a representation or promise made by another: Orissa High Court

ODISHA HIGH COURT: CUTTACK W.P.(C) No. 311820 In the matter of an application under Articles 226 & 227 of the Constitution of India. Manoranjan Das Mohapatra versus State of Odisha and others Opp. Parties For Petitioner Mr. M.D. Mohapatra AdvFor Opp. Parties: Mr. A.K. Mishra Addl. Govt. Advocate O.P. No.1) P R E S E N T : THE HON’BLE DR. JUSTICE B.R.SARANGI DECIDED ON 03.06.2021 Dr. B.R.Sarangi J. The petitioner who is an advocate by occupation has filed this writ petition in person seeking to declare the impugned proceeding vide memo no.4046 dated 04.05.2020 as illegal arbitrary and unconstitutional and consequentially issue direction to opposite party no.3 to allot a plot in favour of him either in the same project or in any other similar housing project under the control and management of the opposite party Odisha Co operative Housing Corporation Ltd. Bhubaneswar. The factual matrix of the case in hand is that opposite party no.3 Managing Director of opposite party no.2 Odisha Co operative Housing Corporation Ltd. issued an advertisement in daily newspaper “The Samaja” on 01.01.2013 inviting applications for sale of 18 number of vacant plots of different sizesat the rate of Rs.160 per sq.ft. at Kalinga Vihar Housing Project Puri Odisha. The advertisement specified that the applicants need to apply in plain papers indicating their choice of plot with booking amount of Rs.50 000 and the mode of allotment would be on “First come first serve” basis and the deposit would be received in shape of Demand Draft Bankers cheque issued in favour of “Odisha Co operative Housing Corporation Ltd.” payable at Bhubaneswar. The Managing Director Odisha Co operative Housing Corporation Ltd. reserved the right to accept or reject any application submitted without assigning any reasons whatsoever. Pursuant to such advertisement the petitioner submitted his application along with demand draft of Rs.50 000 bearing demand draft no.132819 dated 01.01.2013 drawn on Syndicate Bank in favour of opposite party no.3 which was duly received by him. After receipt of his application along with requisite fees the petitioner did not receive any communication from opposite party no.3 with regard to his selection or rejection of allotment of plot. The petitioner waited from 2013 to 2016 with a hope that the plot would be allotted in his faovur and intimation would be given to him. Opposite party no.3 neither allotted the plot nor intimated the petitioner regarding allotment of the plot. Therefore the petitioner submitted representation on 02.01.2014 to opposite party no.3 with regard to consideration of his application dated 01.01.2013 but no reply was forthcoming from opposite party no.3. Consequentially against inaction of opposite party no.3 the petitioner approached this Court by filing W.P.(C) No.2546 of 2016 which was disposed of vide order dated 22.02.2016 with a direction to opposite party no.3 to consider the application and dispose of the representation dated 02.01.2014 of the petitioner within a period of 4 weeks from the date of receipt of the order. Though the said order was communicated opposite party no.3 slept over the matter and did not give any intimation to the petitioner. Due to non compliance of the order dated 22.02.2016 passed in W.P.(C) No.25416 the petitioner filed CONTC No.249 of 2017 in which upon receipt of notice opposite party no.3 issued a letter and a cheque of Rs.50 000 in favour of the petitioner dated 16.12.2019 stating that the earnest money received was returned herewith as the petitioner was not provided with the land applied for. Hence this writ petition. Mr. M.D. Mohapatra the petitioner appearing in person contended that he had deposited the earnest money of Rs.50 000 in shape of demand draft pursuant advertisement issued on 01.01.2013 but opposite party no.3 having kept quiet for a period of six years returned the aforesaid earnest money without any interest and without allotting any plot in his favour. He further contended that because of filing of W.P.(C) No. 2546 of 2016 and subsequently CONTC No. 249 of 2017 opposite party no.3 returned his earnest money of Rs.50 000 in order to get rid of the charge of contempt. Thereby opposite party no.3 has acted arbitrarily and unreasonably for which the petitioner seeks interference of this Court at this stage. Mr. A.K. Mishra learned Additional Government Advocate appearing for the State contended that the petitioner having received back the earnest money deposited by him with due acknowledgement he cannot turn around and claim the plot and as such the relationship between the petitioner and opposite parties no.2 and 3 which was continuing has been ceased. More so no contract is subsisting between the parties so as to claim the benefit in the present writ petition. Assuming but not admitting if there is violation of any terms and conditions which emanates from the so called contract the petitioner should have approached the appropriate forum ventilating his grievances in accordance with law instead of approaching this Court by filing present writ petition invoking extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. This Court heard Mr. M.D. Mohapatra the petitioner in person and Mr. A.K. Mishra learned Additional Government Advocate for the State through virtual mode. As the matter is being decided at the stage of fresh admission this Court is not inclined to issue notice to opposite parties no.2 and 3 and has disposed of the matter on the basis of the argument advanced by the petitioner Mr. M.D. Mohapatra and Mr. A.K. Mishra learned Additional Government Advocate for the State and materials available on record itself. The facts mentioned above are not in dispute. But the question raised that having retained the earnest money for a period of more than six years and refunded the same to the petitioner pursuant to contempt proceeding initiated against opposite parties no.2 and 3 the action of opposite parties no.2 and 3 is arbitrary and contrary to the law. No doubt earnest money deposited by the petitioner was kept for a period of six years to provide a plot pursuant to advertisement issued under Annexure 1. On perusal of advertisement under Annexure 1 it is made clear that the mode of allotment would be on “First come first serve” basis. Even though the petitioner applied in a plain paper by depositing Rs.50 000 as booking amount in shape of demand draft but his right only accrues if he satisfies the requirement of “First come first serve” basis. Pursuant to the representation dated 02.01.2014 which was filed by the petitioner and was directed to be disposed of vide order dated 22.02.2016 in W.P.(C) No.2546 of 2016 opposite party no.3 Managing Director Odisha Co operative Housing Corporation Ltd. passed the following order: “In obedience to Order dated 22.02.2016 of the Hon’ble High Court Odisha passed in W.P.(C) No.2546 of 2016 the representation of the Petitioner Sri Manoranjan Das Mohapatra is taken up for disposal n dated 04.05.2020. The brief history of the facts that the Odisha Cooperative Housing Corporation had advertisement dated 01.01.2013 in daily Odia Newspaper ‘Samaj’ for allotment of 18 Nos. of vacant plots at its Kalinga Vihar project at Puri on the first come first serve basis. In response to such advertisement 60 Nos. of applicants including the present Petitioner Sri Das Mohapatra applied for a plot in the said project. For the purpose of allotment the Corporation maintained the serial as per the date & time of submission of applications by the applicants. As per the serial the Corporation allotted 18 plots to the applicants from Sl. No.1 to 18 and the others could not be allotted any plots. It is to mention here that the Serial Number of the present Petitioner Sri Das Mohapatra was 32. As such he was not eligible for allotment of Plot in the aforementioned project. However the Corporation tried to adjust the rest applicants in the same project as well as in other projects. However such proposal of the Corporation could not be materialized. In the instant case the Petitioner Sri Das Mohapatra was refunded back his deposited money vide Cheque No.596155 dated 05.12.2019 amounting to Rs.50 000 2 SCC 355 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 truthand is that species of presumption „juries et et jure‟ 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 In Mahindra and Mahindra Ltd. v. Union of India 2 SCC 529 the apex Court held that „estoppel‟ can arise only if a party to a proceeding has altered his position on the faith 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 has been maintained by opposite parties no.2 & 3 on the “First come first serve” basis and the petitioner‟s name was found place at serial no.32 and there were only 18 plots available it cannot be said that illegalities and irregularities have been committed by opposite parties no.2 and 3 so as to cause interference of this Court at this stage. Coming to the allegation as made with regard to retention of booking money for a period of six years for that the petitioner has alternative remedy to approach the appropriate forum claiming interest thereon. For the reasons indicated hereinbefore this Court is not inclined to interfere with the order impugned communicated to the petitioner vide memo no.4046 dated 04.05.2020 by opposite party no.3 in Annexure 7. However it is left open to the petitioner to pursue his remedy before the appropriate forum claiming interest on the booking money if he is so desired. With the above observations and directions the writ petition is disposed. However there shall be no order as to costs. DR.B.R.SARANGI Odisha High Court Cuttack The 13th January 2021 Alok 

Summary: Estoppel is based on the allegiance of maximum allegans contraria non est audiendus, which are the kinds of presumption juries et jure (absolute or final or impermissible presumption) if it is taken to be true that the alleged fact is not true against the whole world, but a particular party. Estoppel can only occur if a party to a case has changed its position on the belief that someone else has represented or promised. The judgment was passed by The High Court of Orissa in the case of Manoranjan Das Mohapatra V. State of Odisha and Others [W.P.(C) No. 31182 of 2020] by a Single Bench consisting of Hon’ble Shri Justice B.R.Sarangi. The petitioner has filed this writ petition in person seeking to declare the impugned judgment as illegal, arbitrary, and unconstitutional, and consequentially issue direction to the opposite party to allot a plot in favor of him either in the same project or in any other similar housing project under the control and management of the opposite party-Odisha Co-operative Housing Corporation Ltd., Bhubaneswar. Learned counsel for the petitioner (himself) contended that he had deposited the earnest money of Rs.50,000 in the shape of demand draft according to the advertisement, but an opposite party, having kept quiet for six years, returned the aforesaid earnest money without any interest and without allotting any plot in his favor. He further contended that because of the filing of the writ petition, the opposite party returned his earnest money of Rs.50,000 to get rid of the charge of contempt. Thereby, the opposite party has acted arbitrarily and unreasonably, for which the petitioner seeks interference of this Court at this stage. Learned Counsel for the respondent contended that the petitioner has received back the earnest money deposited by him, with due acknowledgment, he cannot turn around and claim the plot and as such, the relationship between the petitioner and opposite parties, which was continuing, has been ceased. More so, no contract is subsisting between the parties to claim the benefit in the present writ petition. Assuming but not admitting, if there is a violation of any terms and conditions, which emanates from the so-called contract, the petitioner should have approached the appropriate forum ventilating his grievances following the law, instead of approaching this Court by filing present writ petition invoking extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India.