Madras High Court
T.Thirunarayanan vs The Chairman And Managing ... on 5 September, 2022
W.P(MD)No.12719 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.09.2022
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
W.P(MD)No.12719 of 2015
and
M.P(MD)No.1 of 2015
T.Thirunarayanan ... Petitioner
Vs.
1.The Chairman and Managing Director,
Tamil Nadu Housing Board,
Nandanam,
Chennai-35.
2.The Executive Engineer and
Administrative Officer,
Tamil Nadu Housing Board,
Ellis Nagar Housing Unit,
Ellis Nagar,
Madurai,
Madurai District.
3.The District Collector,
District Collector's Office,
Madurai,
Madurai District. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Certiorarified Mandamus, to
call for the records relating to second respondent proceedings made in
Letter No.A3/422/88 dated 09.02.2015, quash the same and further
1/11
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W.P(MD)No.12719 of 2015
direct the second respondent to issue demand notice on the basis of the
Hon'ble Apex Court order dated 02.09.2008.
For Petitioner : Mr.R.Sundar
For R1 & R2 : Mr.R.Sivakumar
Standing Counsel
For R3 : Mr.A.Baskaran
Additional Government Pleader
ORDER
The present writ petition has been filed challenging a demand
notice issued by the respondent authorities, under which they have
demanded a sum of Rs.5,33,563/- (Rupees Five Lakhs Thirty Three
Thousand Five Hundred and Sixty Three only) towards additional cost
for the plot along with the interest.
2. The demand made by the respondent housing board was
challenged by many allottees before the Hon’ble Supreme Court. The
Hon’ble Supreme Court by an order, dated 02.09.2008 made in C.A.No.
1805 of 2007, has permitted the respondent authorities to demand
additional cost for the plot and permitted the authorities to calculate
interest for the additional cost from 01.01.2001 till 30.11.2008. The
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W.P(MD)No.12719 of 2015
Hon’ble Supreme Court in Paragraph No.9 of the order, has directed the
respondent authorities to raise a demand on the allottees within a period
of three months from the date of the order. On receipt of the said
demand notice, the allottees were directed to deposit the demand
amount within a period of three months.
3. According to the petitioner, at the time of allotment, he was
residing in Madurai. However, in the year 2005, he had shifted his
residence to Trichirappalli. By two communications, dated 03.10.2005
and 23.02.2006, he has informed the respondent authorities about the
change of his address to Trichirappalli.
4. The respondent authorities are said to have issued a demand
notice to the writ petitioner in compliance with the orders of the
Hon’ble Supreme Court on 26.11.2008 along with a working sheet. This
demand notice has been sent to the Madurai address of the writ
petitioner. According to the writ petitioner, he has not received the said
notice. Thereafter, the writ petitioner has sent a representation on
31.03.2009, requesting the respondent authorities to send a demand
notice as per the judgment of the Hon’ble Supreme Court. Even the said
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W.P(MD)No.12719 of 2015
request was not acceded to by the respondent board. Hence, the
petitioner was constrained to file W.P(MD)No.4045 of 2009 before this
Court seeking a Mandamus, directing the board authorities to issue a
demand notice as per judgment of the Hon’ble Supreme Court.
5. The learned Single Judge of this Court, by an order, dated
29.09.2009 had directed the respondent authorities to issue a fresh
demand notice within a period of two months from the date of copy of
that order. The petitioner was also directed to pay the said amount.
Thereafter, the respondent authorities have issued a fresh demand notice
on 25.11.2009 demanding a sum of Rs.4,29,744/- (Rupees Four Lakhs
Twenty Nine Thousand Seven Hundred and Forty Four only).
According to the petitioner, the said demand is not in consonance with
the judgment of the Hon’ble Supreme Court and the interest was not
calculated up to 30.11.2008, but it was calculated up to the date of the
impugned order, dated 25.11.2009. Hence, the petitioner was
constrained to file W.P(md)No.3022 of 2010.
6. The learned Single Judge of this Court by an order, dated
23.04.2014 had set aside the said demand notice and directed the
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W.P(MD)No.12719 of 2015
respondent authorities to issue a fresh demand notice in consonance
with the orders of the Hon’ble Supreme Court within a period of two
weeks. Thereafter, the present impugned notice, dated 09.02.2015 has
been issued by the respondent Board. In the said impugned notice, the
board has demanded a sum of Rs.5,33,563/- (Rupees Five Lakhs Thirty
Three Thousand Five Hundred and Sixty Three only). The said demand
notice is under challenge in the present writ petition, mainly on the
ground that the interest portion has not stopped up to 30.11.2008, but it
has been calculated up to the date of the present impugned order.
7. The learned counsel for the petitioner had submitted that had a
proper demand notice been issued within a period of three months from
the date of the order of the Hon’ble Supreme Court, they would have
paid the said amount. However, in the present case, no such demand
notice was issued to the writ petitioner within a period of three months
from the date of order of the Hon’ble Supreme Court. The learned
Single Judge in his order, dated 29.09.2009 in W.P(MD)No.4045 of
2009 in Paragraph No.4 has held that the first demand notice, dated
26.11.2008 has not been sent to the correct address of the writ petitioner
or there is negligence on the part of the respondent/Board. The Hon’ble
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W.P(MD)No.12719 of 2015
Single Judge in W.P.No.3022 of 2010, in Paragraph No.5 has
categorically found that there is no proof that the first demand notice as
per the order of the Hon’ble Supreme Court, dated 26.11.2008 has ever
been served upon the writ petitioner.
8. In view of the findings of the both the learned Single Judges of
this Court, it is clear that a demand notice as directed by the Hon’ble
Supreme Court has not been served upon the writ petitioner within a
period of three months from the date of the order of the Hon’ble
Supreme Court. Thereafter, the respondent board has been issuing
demand notices to the writ petitioner, in which the interest is calculated
not up to the date of the judgment of the Hon’ble Supreme Court, but up
to the date of the relevant demand notices. Hence, these notices have
been put to challenge by the writ petitioner on earlier occasion. The
present impugned demand notice has also calculated the interest portion
up to the date of the demand notice.
9. The question of levying interest would arise only when a
demand has been legally raised and it has been served upon the writ
petitioner/allottee. In a case where, a demand has not been raised or a
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W.P(MD)No.12719 of 2015
demand has been raised but not served upon the allottee, the question of
levying interest does not arise. Only in cases where demand has been
made and default has been committed by the allottee, the question of
levying interest would arise. In the present case, as found by the learned
Single Judges of this Court, a demand notice as directed by the Hon’ble
Supreme Court has not at all been served upon the petitioner. Two other
demand notices that were served upon the petitioner were not in
consonance with the judgment of the Hon’ble Supreme Court. In view
of the above said findings, this Court is inclined to set aside the present
impugned order, dated 09.02.2015.
10. Since the Hon’ble Supreme Court has directed the respondent
board to levy interest on the additional cost from 01.01.2001 and has
also directed the respondent board to make a demand for the said
additional cost within a period of three months from the date of the
order of the Hon’ble Supreme Court, this Court is of the categorical
view that any claim for interest would stop on 30.11.2008. Thereafter,
the respondent board cannot claim any interest, unless it is proved that
the allottee has been served with the demand notice in consonance with
the Hon’ble Supreme Court judgment and he has committed default in
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W.P(MD)No.12719 of 2015
payment of the said amount. In the present case, no such demand notice
has ever been issued by the respondent board to the writ petitioner,
demanding interest on the additional cost from 01.01.2001 to
30.11.2008. Hence, the impugned order, in which the interest has been
calculated up to the date of the impugned order is set aside.
11. In view of the above said discussion, this Court passes the
following order:
(i) The order impugned in the writ petition is
set aside. The matter is remitted back to the file of
the second respondent herein.
(ii) The second respondent is directed to issue
a fresh demand notice along with the working sheet
calculating rate of interest for the additional cost
from 01.01.2001 to 30.11.2008.
(iii) The said demand notice shall be issued
within a period of eight weeks from the date of
receipt of a copy of this order.
(iv) The petitioner/allottee on receipt of the
said demand notice, shall pay the said amount within
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W.P(MD)No.12719 of 2015
a period of eight weeks. from the date of receipt of a
copy of the demand notice. In case, if the
petitioner/allottee did not pay the amount within a
period of eight weeks from the date of receipt of such
a demand notice, the respondent board are at liberty
to impose interest from the date of default committed
by the petitioner.
12. With the above said observation, this Writ Petition stands
allowed. No costs. Consequently, connected Miscellaneous Petition is
closed.
05.09.2022
Index : Yes / No
Internet : Yes / No
gbg
https://www.mhc.tn.gov.in/judis
W.P(MD)No.12719 of 2015
To
1.The Chairman and Managing Director,
Tamil Nadu Housing Board,
Nandanam,
Chennai-35.
2.The Executive Engineer and
Administrative Officer,
Tamil Nadu Housing Board,
Ellis Nagar Housing Unit,
Ellis Nagar,
Madurai,
Madurai District.
3.The District Collector,
District Collector's Office,
Madurai,
Madurai District.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.12719 of 2015
R.VIJAYAKUMAR ,J.
gbg
Order made in
W.P(MD)No.12719 of 2015
Dated:
05.09.2022
https://www.mhc.tn.gov.in/judis
