IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.06.2010 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR. JUSTICE K.K.SASIDHARAN Writ Appeal No.1443 of 2008 and M.P.No.1 of 2008 K.Saraswathi ..Appellant/Petitioner vs 1. The State of Tamil Nadu rep. by its Secretary to Government, Housing Department, Secretariat, Chennai-600 009. (Tamil Nadu). 2. The Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai-35. ..Respondents/Respondents Prayer:- Writ Appeal filed under Clause 15 of Letters Patent Act against the order dated 23.10.2008 made in W.P.No.21985 of 2002. W.P.No.21985 of 2002:- Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari to call for the records of the first respondent dated 29.04.2002 in his procedings in G.O.(D) No.259, Housing and Urban Development (NI.A4 (1)) Department and quash the same. For Appellant : Mr.V.P.Raman For Respondent : Mr.G.Desingu, Spl.Govt.Pleader for R1. Mr.S.Kasikumar for Mr.K.Chelladurai for R2. J U D G M E N T (Judgment of the Court was delivered by ELIPE DHARMA RAO,J.) The challenge in this writ appeal is to the order passed by the learned single Judge in W.P.No.21985 of 2002 dated 23.10.2008, confirming the order passed by the first respondent dated 29.04.2002 https://hcservices.ecourts.gov.in/hcservices/ in G.O.(D).No.259, Housing and Urban Development Department, Government of Tamilnadu. 2. The matter relates to rejection of request for transfer of allotment of a house by the Tamil Nadu Housing Board under public rental category. 3. The appellant is the widow of one Kodambakkam Kumar, who was allotted a residential accommodation by the Tamilnadu Housing Board (hereinafter referred to as "Housing Board") at Door No.11, Model House Road, C.I.T. Nagar, Chennai. While the allottee was in possession and enjoyment of the house, he died on 18.09.2000. Thereafter, the appellant filed an application to transfer the accommodation in her name. However, there was no follow up action taken by the second respondent. In the meantime, the second respondent issued a notice dated 07.02.2001 calling upon the appellant to show cause as to why she should not be evicted from the premises. Though the appellant submitted a reply to the said notice, it was not considered favourably by the second respondent and ultimately an order was passed on 23.08.2001 directing her to vacate the premises within a period of thirty days from the date of receipt of the order. The said order was challenged before the first respondent invoking Section 86 of the Tamil Nadu State Housing Board Act, 1961. The appeal was ultimately dismissed as per the impugned order dated 29.04.2002. Feeling aggrieved, the appellant is before this Court. 4. The second respondent, in their counter affidavit, contended that the Housing Board has taken a policy decision not to transfer the leasehold rights in favour of the legal heirs of the original allottee and as such, the request of the appellant was not considered. According to the Housing Board, the allotment was personal in nature and as such the legal heirs have no right to insist that the lease should be transferred to them subsequent to the death of the original allottee. Accordingly, the Housing Board justified the eviction order. 5. The learned single Judge was of the view that in the absence of any obligation on the part of the Housing Board to sell the property, the appellant cannot insist that the property should be given to her in view of her occupation. According to the learned Judge, the husband of the appellant was the original allottee, he having got the same under general quota and once the allottee passed away, it was not open to the Court to give a direction to the Housing Board to renew the tenancy unless the Housing Board on their part is willing to renew the tenancy. Accordingly, the writ petition was dismissed. 6. The learned counsel for the appellant would submit that in similar circumstances, the second respondent has transferred the https://hcservices.ecourts.gov.in/hcservices/ tenancy in favour of the legal heirs of the original allottee and as such, the same treatment has to be given to the appellant also. It was her further contention that the Government have issued series of orders directing the Housing Board to transfer the lease in favour of the legal heirs. Similarly, the Government have issued several orders even transferring the leasehold premises to the allottees by converting the allotment to one of hire purchase. However, for the reasons best known to the second respondent, no such indulgence was shown to the appellant. The learned counsel also contended that the second respondent, being a State, cannot behave in an arbitrary manner and they cannot be permitted to pick and choose the beneficiaries at their whims and fancies. In short, the learned counsel challenges the order mainly on the ground of discrimination. 7. The learned counsel for the Housing Board justified the order passed by the second respondent as confirmed by the first respondent. According to the learned counsel, the Housing Board has taken a policy decision against transfer of leases granted under public rental quota in favour of the legal heirs. It was only on account of the said policy decision, the application submitted by the appellant was not entertained. He would further contend that in the light of the policy decision taken by the Housing Board, it was not open to the appellant to make a claim for transfer of allotment. 8. There is no dispute that the premises at Door No.11, Model House Road, C.I.T. Nagar, Chennai, absolutely belongs to the Tamil Nadu Housing Board. The Board is a "State" within the meaning of Article 12 of the Constitution of India. The accommodation at the disposal of the Board for allotment is very limited. The Board has to cater to the needs of all sections of public. The Board has also to allot houses to the Government servants. Only a prescribed percentage is earmarked for allotment under public rental category. In case the legal heirs of the original allottees claim transfer of the allotment as a matter of right and the Housing Board agrees for such transfer, there would not be any further allotment of accommodation under public rental category. If such transfers are permitted liberally, the limited accommodation in the possession of the Board would vest in the hands of few people for their enjoyment on a permanent basis by generation over generation. The public property cannot be given in such a manner, in favour of selected few. It should be given on a rational basis. It cannot also be given in perpetuity. Such allotments are personal in nature and as such no claim could be made by the successor-in-interest for transfer as a matter of course. 9. The allotment in the subject case was made long ago. The appellant was living in the residence along with her husband and children. The original allottee died on 18.09.2000. The additional affidavit filed by the appellant would show that her children are staying in and around Chinmaya Nagar in the city of Chennai. It is https://hcservices.ecourts.gov.in/hcservices/ also the case of the appellant that four of her children are contributing Rs.700/- to Rs.900/- so as to enable her to pay the rent and to meet her expenses. The appellant is aged about 76 years. There is nothing in the affidavit which would go to show that her children are not allowing her to stay with them. Hence, the learned counsel for the second respondent was right in his submission that the appellant could stay with her children and there is no necessity for her to stay alone in an independent bungalow. 10. Section 84 of the Tamil Nadu State Housing Board Act, 1961 gives powers to the competent authority to evict persons from the premises of the Board. Explanation added to Section 84 makes the position clear that continuance of occupation either by the allottee or any person claiming through or under him of the premises after the authority under which he was allowed to occupy the premises has been determined, would amount to "unauthorised occupation" making the occupier liable for eviction. Therefore the Housing Board was justified in passing the order of eviction against the appellant treating her as one who is in "unauthorised occupation." 11. The appellant has also raised a contention that the Government have issued several directions for transfer of lease in favour of the legal heirs and orders were also issued for change of the leasehold rights by converting them into one of ownership. Section 155 of the Tamil Nadu State Housing Board Act, 1961, gives power to the Government to give appropriate directions to the Board and it shall thereupon be the duty of the Board to comply with those directions. It is only when the Government forms an opinion that it is necessary or expedient for carrying out the purposes of the Act, such a direction could be issued. The Housing Board has taken a policy decision not to allow transfer of leases or conversion of leasehold premises to one of ownership. The Government have not passed any orders cancelling the said policy. After all the Housing Board property is the property of public to be used for the benefit of the people at large. 12. The claim of the appellant was based on the earlier orders passed by the Government permitting transfer of allotment as well as sale of leasehold premises to the allottees or their legal heirs as found in the typed-set of documents. When those orders were passed, the policy decision taken by the Housing Board was very much in operation. Therefore such orders were against the prevailing policy of the Housing Board. Since those residential units were earmarked for allotment under public rental quota, neither the Housing Board nor the Government got powers to effect transfer of ownership. Public property cannot be given in such an arbitrary manner. In case such dwelling units are sold to those, who were in possession of it as tenants, the available units at the command of the Housing Board for allotment to the public would be reduced considerably. In any case, the legality or correctness of such allotments are not the https://hcservices.ecourts.gov.in/hcservices/ subject matter of this appeal. The appellant makes a claim for sale of the units in her favour or in the alternative, transfer of allotment on the ground that similar permission was given to others. It is trite that Article 14 of the Constitution of India cannot be invoked to perpetuate illegality. The equality clause enshrined under Article 14 of the Constitution is a positive concept. Illegal orders cannot be the basis for claiming equal treatment. 13. The decision taken by the Housing Board not to transfer the allotment under the public rental category was with a specific purpose. It was a decision taken in larger public interest. There are many people in the queue, claiming such allotment. It is only when the houses are vacated, the Housing Board would be in a position to consider their request for allotment. In case existing allotments are transferred from the name of original allottee to the legal heirs and thereafter, to the next generation, the property would continue to be in the hands of chosen few and others would be denied of such accommodation. Therefore, an element of social objective was behind the decision taken by the Board not to permit transfers to the legal heirs. We do not find any illegality in the said policy decision warranting our interference. The application submitted by the appellant was rejected on valid reasons, in the light of the prevailing policy of the Board. The matter was considered once again by the Government and the plea was again rejected. The issue was re-examined by the learned single Judge and arrived at a correct conclusion that the order does not warrant interference. We do not find any justifiable reason to take a different view in the matter. 14. Accordingly, the writ appeal is dismissed. Connected M.P. is closed. No costs. The appellant is granted eight weeks time from the date of receipt of a copy of this order to vacate the premises. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar bs/Tr To 1. The Secretary to Government, State of Tamil Nadu Housing Department, Secretariat, Chennai-600 009. (Tamil Nadu). https://hcservices.ecourts.gov.in/hcservices/ 2. The Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai-35. + 1 c.c. to Mr. V.P. Raman, Advocate. S.R.No.43206. + 1 c.c. to Mr. K. Chelladurai, Advocate. S.R.No.42550. + 1 c.c. to The Government Pleader. S.R.No.43262. W.A.No.1443 of 2008 & M.P.No.1 of 2008 TAM (CO) GSK 02.07.2010. https://hcservices.ecourts.gov.in/hcservices/