Madras High Court
R.Maria Janaki vs The Executive Engineer & ... on 10 August, 2023
W.P(MD)No.19442 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)No.19442 of 2023 and
WMP(MD) 16081 of 2023
R.Maria Janaki ... Petitioner
Vs
1.The Executive Engineer & Administrative Officer,
Tamil Nadu Housing Board,
Tirunelveli Housing Unit,
Anbu Nagar,
Tirunelveli – 625 011.
2.The Manager (Marketing & Service),
O/o The Executive Engineer and Administrative Officer,
Tirunelveli Housing Unit,
17D-C-Colony,
Perumalpuram,
Tirunelveli – 627 007. ...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 of the second respondent made in
his letter No.R-3/403/1991 dated 13.12.2022 and quash the same as
without jurisdiction and consequently direct the respondents to
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W.P(MD)No.19442 of 2023
execute the sale deed pertaining to House No.HIG 3, at Palai Phase -
IV Scheme in the name of the petitioner, within the stipulated period
by this Court.
For Petitioner : Mr.Ananth C.Rajesh
For Respondents : Mr.S.Velmurugan
Standing Counsel
ORDER
The petitioner is an allottee of a house constructed by
the Tamil Nadu Housing Board, Tirunelveli Housing Unit, Palai
Phase IV Scheme, Thamirapathi Colony, Tirunelveli. By the order
impugned in this writ petition, the Manager (Marketing & Service),
Office of the Executive Engineer and Administrative Officer,
Tirunelveli Housing Unit instructed the petitioner to pay the balance
cost of Rs.13,96,235/-, for the allotment of the house HIG 3 under
Palai Phase IV Scheme on or before 31.12.2022. Challenging the
same, this writ petition is filed on the ground that the notice was
issued without any jurisdiction.
2.The learned counsel appearing for the petitioner
submits that the second respondent is not an authority to issue the
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W.P(MD)No.19442 of 2023
allotment order or to cancel the order. Therefore, the demand made
by the second respondent is without any jurisdiction. When the
authority is not having any power to cancel the document, he is not
supposed to mention in the impugned order that on default of
payment, the order of allotment would be cancelled.
3.Mr.S.Velmurugan, learned Standing Counsel who
takes notice for the respondents by referring the earlier order passed
by this Court in WP(MD) No.3697 of 2013, dated 18.08.2022
submits that the petitioner's attempt to prevent the Housing Board
from demanding any amount has already been rejected by this Court
on 18.08.2022 and this petitioner said to have preferred an appeal as
against the order of this Court in WP(MD) No.3697 of 2013.
However, it was not even numbered. According to the learned
Standing Counsel, the Tamil Nadu Housing Board has constructed
certain houses at Tirunelveli and has allotted the houses as per the
Scheme Palai Phase IV, issued by the Government in Government
order in G.O(Ms) No.29, Department of Housing and Urban
Development, dated 22.01.2001, by fixing a cost as Rs.5,02,000/-.
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W.P(MD)No.19442 of 2023
The petitioner is one the purchasers of the houses. Pursuant to the
above said Government Order, the petitioner was directed to pay an
initial amount of Rs.2,04,000/-. The petitioner has deposited
a sum of Rs.1,80,518/- on 17.12.2004 and filed a civil suit in
O.S.No.606 of 2001 before the I Additional District Munsif Court,
Tirunelveli for a declaration that the allotment order made in favour
of the petitioner is not in consonance with the Government Order in
G.O(Ms) No.29, Department of Housing and Urban Development,
dated 22.01.2001. The suit filed by the petitioner was dismissed.
Challenging the judgment and decree passed in O.S.No.606 of 2001,
the petitioner has filed an appeal in A.S.No.28 of 2003, which was
allowed by the learned Principal Sub Judge, Tirunelveli on
29.10.2003. Subsequently, the petitioner has also paid a sum of
Rs.22,600/- on 17.04.2001, Rs.10,505/- on 12.10.2001 and
Rs.1,80,518/- on 17.12.2004 and totally he has paid a sum of
Rs.2,13,623/- for the house allotted to her. According to the
petitioner, without considering the payments made by the petitioner
and without providing any calculation memo as per the Government
Order in G.O(Ms) No.29, Department of Housing and Urban
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W.P(MD)No.19442 of 2023
Development, dated 22.01.2001, the respondents have made a
demand on 27.12.2012 and that was challenged by the petitioner in
WP(MD) No.3697 of 2013. This Court, by order dated 18.08.2022
has dismissed the writ petition.
4.This Court considered the rival submissions made and
also perused the materials placed on record.
5.The order impugned in this writ petition is a demand
notice issued by the second respondent calling upon the petitioner to
pay the balance cost of Rs.13,96,235/- on or before 31.12.2022. By
the order impugned, the second respondent has also intimated the
petitioner that on failure of payment, the order of allotment would be
cancelled. This is only a caution to the petitioner, reminding that the
petitioner is expected to make the payment on or before 31.12.2022
and it does not mean that the second respondent is going to cancel
the order of allotment of the house to the petitioner. It is to be noted
that the earlier demand notice issued by the respondent Board was
already challenged by the petitioner in WP(MD) No.3697 of 2013
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W.P(MD)No.19442 of 2023
before this Court and this Court considered the case of the petitioner
has dismissed that writ petition by order dated, 18.08.2022 and the
relevant portion is extracted as under:-
7.There is no doubt that the petitioner was allotted
HIG House by an order dated 04.01.2001. According
to the petitioner, she is entitled to the benefit under
G.O.Ms.No.29 dated 22.01.2001. A perusal of the
said G.O, points out that the Housing Board should
not collect interest for the period between the date of
completion of construction and the date of allotment.
This benefit was to be conferred upon the houses that
were constructed before 30.06.2000, but could not be
sold till 31.12.2000. Hence, it is clear that this benefit
is only for the calculation of the principal amount on
the date of issuance of allotment order in favour of
the allottee. In other words, the Housing Board
should not add any interest for the period prior to the
order of allotment from the date of completion of the
construction. However, once the allotment has been
made in favour of an allottee, if he defaults in
payment of equated monthly instalment, necessarily
all the conditions imposed in the order of allotment
will follow.
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W.P(MD)No.19442 of 2023
8.In the present case, the petitioner has filed a civil
suit challenging his order of allotment on the ground
that it is in violation of G.O.Ms.No.29 dated
22.01.2001. As stated supra, the said G.O. would only
result in reduction of the tentative principal cost of
the building and it will not alter any one of the
conditions of the Housing Board after the order of
allotment is made.
9.In fact after the Civil Court decree, the Housing
Board has issued a working sheet to the writ
petitioner on 23.11.2006 specifically indicating that it
is issued in consonance with G.O.Ms.No.29 dated
22.01.2001. Even thereafter, the petitioner has not
proceeded to pay the said amount. Thereafter, some
more concessions were conferred upon the allottees
by way of G.O.Ms.No.215 dated 28.09.2012.
Extending the said benefit, a fresh order was passed
by the Housing Board on 27.12.2012 under which the
petitioner was directed to remit a sum of Rs.
4,73,551/- towards sale consideration.
10.The narration of the above said sequence of events
will clearly indicate that the petitioner cannot have
any grievance for the amount demanded by the
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W.P(MD)No.19442 of 2023
Housing Board towards sale consideration of the
HIG plot allotted to her. The petitioner has accepted
the conditions in the allotment order and has
proceeded to purchase the same and he has also
deposited some amount pursuant to the said allotment
order. The petitioner is time and again relying upon
G.O.Ms.No.29 dated 22.01.2001, but it is applicable
only up to the date of allotment order in favour of an
allottee. It is not the case of the writ petitioner that
the principal cost is not in tune with G.O.Ms.No.29.
The allotment order itself points out that the Housing
Board is entitled to impose an interest at the rate of
21% if there is any default in payment of instalment.
Admittedly, the petitioner has committed default in
payment of EMI. For the said default, she cannot
invoke G.O.Ms.No.29. That apart, the allotment order
clearly mentioned that it is only a tentative cost and
hence, any enhancement in the principal cost based
upon the enhancement in the land acquisition
proceedings has to be paid by the writ petitioner.
The petitioner claims that as against the order passed by this Court
in WP(MD) No.3697 of 2013, the petitioner has preferred an appeal
and the same is yet to be numbered.
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W.P(MD)No.19442 of 2023
6.In view of the earlier order passed by this Court, this
writ petition is dismissed. No costs. Consequently, connected
Miscellaneous Petition is closed.
10.08.2023
NCC :Yes/No
Index :Yes/No
Internet:Yes
vrn
To
1.The Executive Engineer & Administrative Officer,
Tamil Nadu Housing Board,
Tirunelveli Housing Unit,
Anbu Nagar,
Tirunelveli – 625 011.
2.The Manager (Marketing & Service),
O/o The Executive Engineer and Administrative Officer,
Tirunelveli Housing Unit,
17D-C-Colony,
Perumalpuram,
Tirunelveli – 627 007.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.19442 of 2023
B.PUGALENDHI, J.
vrn
Order made in
W.P(MD)No.19442 of 2023 and
WMP(MD) 16081 of 2023
10.08.2023
https://www.mhc.tn.gov.in/judis
