IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.10780 of 2008 and Contempt Petition No.663 of 2011 and M.P.Nos.1 and 2 of 2008 M/s.P.Ramasamy and Co., (Register No.123 of 2004), No.2/335, Kavapatti Village Maruderi (Post) Pochampallai Taluk, Krishnagiri District Pin:635 204 represented by its Managing Partner P.Ramasamy ... Petitioner in Writ petition and Cont.P. Vs. 1.The State of Tamilnadu, rep by Secretary to Government, Housing and Urban Development (HB5(1)) Department, Fort St. George, Chennai-600 009. 2.The Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai-35. 3.The Tamilnadu Housing Board rep by its Secretary and Personal Officer, 493, Anna Salai, Chennai-600 035. 4.The Executive Engineer & Administrative Officer, Hosur Housing Unit, Tamil Nadu Housing Board, Hosur-635 109, Krishnagiri District. ... Respondents in Writ petition 1.R.Sellamuthu, Secretary to Government, Housing and Urban Development HB5(1) Department, Fort St. George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/ 2.P.Rama Mohana Rao, The Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai-35. ... Respondents in contempt petition Writ Petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the order of the 1st respondent in G.O.(1D) No.111 Housing and Urban Development (HB5 (1) Department dated 8.1.2008 and the consequential order of the 3rd respondent in letter no.... allot 3(3)/19738/04-1 dated 10.4.2008,31.3.2008 respectively and quash the same and consequently direct the respondents to fix the land cost and for completing the sale pursuant to the orders of this Court in W.P. No. 34048 of 2004 dated 24.11.2004 and W.P. No. 37228 of 2007 dated 15.2.2008 forthwith. Contempt Petition is preferred under Section 11 of the Contempt of Courts Act to punish the respondents for violating and disobeying the orders of this court made in W.P.No.34048 of 2004, dated 24.11.2004. For Petitioner : Mr.R.Thiagarajan, SC for Mr.A.Sivaji in both petitions For Respondents : Mr.R.Ravichandran, AGP for Mr.M.C.Swamy, Spl.G.P. for R-1 in W.P. Mr.A.Vijayakumar for RR-2 to 4 in W.P. C O M M O N O R D E R Both the matters came to be posted before this Court on being specially ordered by the Hon’ble Chief Justice vide order dated 08.06.2011. 2. The writ petition came to be filed seeking to challenge an order of the first respondent State in G.O.(1D) No.111 Housing and Urban Development Department, dated 08.01.2008 and the consequential order of the third respondent namely, Tamil Nadu Housing board dated 10.04.2008 and 31.08.2008 respectively and after setting aside the same seeks for a direction to the respondents to fix the land cost and to complete the sale pursuant to the order passed by this Court in W.P.No.34048 of 2004 dated 24.11.2004 and in W.P.No.37228 of 2007 dated 15.02.2008. https://hcservices.ecourts.gov.in/hcservices/ 3. By the impugned order, the State Government informed the petitioner that accepting the recommendation made by the third respondent, the petitioner’s allotment in Commercial Site No.97-A at Phase I Krishnagiri, Hosur made in favour of M/s.P.Ramasamy and Co was directed to be cancelled and the third respondent was directed to take further action. It is pursuant to the said direction, the third respondent informed the petitioner that the allotment made in his favour, as it was in excess of 15% Government Discretionary Quota, it has been cancelled. This was also reiterated by a further order dated 10.04.2008. 4. The writ petition was admitted on 28.04.2008 and an order of interim stay was granted. The said interim stay came to be extended until further order by a further order dated 15.06.2009. In the application for interim injunction, initially notice was ordered. Subsequently, on 23.12.2010, an order of status quo as on that date was granted by this Court. 5. The petitioner also moved a contempt petition being C.P.No.663 of 2011 to punish the respondents for having willfully disobeyed the order passed by this Court in W.P.No.34048 of 2004 dated 24.11.2004. 6. It is seen from the records by G.O.(2D) No.72, Housing and Urban Development Department dated 04.03.2004, a Commercial Plot in Plot No.97A under the Krishnagiri Housing Scheme, Phase I was allotted to the petitioner under the category of Social Worker. Such discretionary allotments were made by the Government pursuant to the order of the Government in G.O.No.28B, Housing and Urban Development Department, dated 28.08.1997. Subsequently, the petitioner was informed that the third respondent was addressed by the 4th respondent for certain clarifications and action will be taken to grant the allotment order. Confirmation of auction sale was also given to the petitioner by proceedings dated 01.10.2004. 6. In the meanwhile, the petitioner filed a writ petition being W.P.No.34048 of 2004, seeking for a direction to receive the cost of the plot and to hand over the possession of the plot. This Court while disposing of that writ petition on 24.11.2004 in paragraphs 4 and 5 observed as follows:- "4. Mr.Veerasekaran, learned counsel appearing on behalf of the Tamilnadu Housing Board submits that the respondents do not go back from their commitments made in G.O.(2-D) No.72 Housing and Urban Development Department, dated 04.03.2004 and further seeks eight weeks time to finalise the cost for the impugned commercial site and to inform the same to the petitioner. 5.Inthat view of the matter, except to record the statement made by the learned counsel appearing for the Tamilnadu Housing Board that the allotment of https://hcservices.ecourts.gov.in/hcservices/ Commercial Plot at 97-A, Phase No.1, Krishnagiri, Housing Project under Hosur Housing Unit shall not be withdrawn and the petitioner will be informed the cost of the said commercial unit within a period of eight weeks from the date of receipt of a copy of this order, no further orders are required in this writ petition. Accordingly, the writ petition is disposed of. No costs. Consequently, W.P.M.P.No.41158 of 2004 is closed." 7. Thereafter, the petitioner sent several communications including legal notice to the respondents and filed a writ petition being W.P.No.37228 of 2007 to fix the land cost and for a consequential order for completing the sale. That writ petition came to be disposed of by a final order dated 15.02.2008. In that order, in paragraph 8, it was averred as follows:- "8. Accordingly, the first respondent is directed to consider the representation of the petitioner dated 3.12.2007 and pass appropriate orders by fixing the cost of the plot already allotted to the petitioner, namely, 97-A, Phase I, Krishnagiri Housing Project under Hosur Housing Unit Scheme and intimate the same to the petitioner within a period of four weeks from the date of receipt of a copy of this order. It is made clear that no further time will be given to the Housing Board since this Court has already given sufficient time by the earlier order dated 24.11.2004 in W.P.No.34048 of 2004." 8. But however, the third respondent by a communication dated 31.03.2008 informed the petitioner that the Government had cancelled the allotment made in favour of the petitioner by G.O. (1D) No.111 Housing and Urban Development Department, dated 08.01.2008 as it was in excess of 15% Discretionary Quota. Thereafter, the petitioner was also informed by the third respondent by the impugned order dated 10.04.2008 that the Commercial Plot No.97-A has been reserved under Board’s Quota and it will be sold by the Board through sealed offer-cum-open auction by giving proper advertisement calling for offers from the general public. The said plot could not have allotted under the Discretionary quota by the Government as it was in excess of 15% quota reserved for the Government. Therefore, the petitioner was directed to participate in the open auction. Challenging the same, the writ petition came to be filed. 9. In the Government Order impugned dated 08.01.2008, the petitioner was clearly informed that the Housing Board did not fix the cost of the plot and therefore, no consequential order was issued to the petitioner. Further since the plot is coming under the Housing Board quota, the government could not have made any discretionary allotment. https://hcservices.ecourts.gov.in/hcservices/ 10. Mr.A.Vijayakumar, learned counsel for the second respondent produced a copy of the subsequent G.O.Ms.No.6, Housing and Urban Development Department, dated 07.01.2011 where the Government’s discretionary quota itself has been abolished and all the unused houses, plots and flats will be considered as units available for the Housing Board and the Housing Board shall dispose of the remaining plots in accordance with the rules framed. 11. In the counter affidavit filed by the 4th respondent dated Nil (January 2011), it was stated that there is no concluded contract in favour of the petitioner. The writ petition cannot be maintained in the absence of any legal or enforceable right on the part of the petitioner. It was also stated that till the petitioner entered into Lease cum Sale Agreement, there was no legal contract between the petitioner and the third respondent. The Government could not have allotted the plot even under the old rates as it was in excess of the quota allotted to them. 12. Mr.R.Thiyagarajan, learned Senior Counsel appearing for Mr.A.Sivaji, learned counsel for the petitioner contended that inasmuch as the earlier direction was given to the respondents to enforce the order, the respondents cannot wriggle out of the obligation. In support of his contention, he referred to a judgment of the Supreme Court in A.V.Nachane and another v. Union of India and another reported in (1982) 1 SCC 205. In that judgment, in paragraph 12, the Supreme Court referred to the earlier orders passed with reference to directing the Life Insurance Corporation to pay annual cash bonus and quoted them with approval. It was held that even if a legislation was made subsequent to a mandamus issued by the Court, the authorities are bound to obey the writ of mandamus issued by this Court. 13. The learned Senior Counsel also referred to the judgment of the Supreme Court in Haribans Misra and others v. Railway Board and others reported in (1989) 2 SCC 84 and pointed out that in that case in paragraph 6, the Supreme Court refereed to a judgment of the Division Bench of the High Court binding on the relevant Board, as it was issued before the preparation of list, the Board has to comply with the order of the High Court. 14. All that this Court has said in the order dated 24.11.2004 was that the Board cannot go back from their commitment made by the GO. But in the present case, the Government Order itself has been cancelled by the Government and therefore, the Board cannot be expected to implement a non-existing Government order. In W.P.No.37228 of 2007, this Court by an order dated 15.02.2008 directed the respondents to consider the representation of the petitioner regarding the fixing up of the cost. But when https://hcservices.ecourts.gov.in/hcservices/ that order was passed, neither the Housing Board nor the petitioner brought to the notice of this Court, the Government Order in G.O.(1D) No.111 Housing and Urban Development Department, dated 08.01.2008, wherein, the petitioners allotment has been cancelled. The State Government was also not made as party in that writ petition. Therefore, it could not be said that any order of this Court has been violated inasmuch as the petitioner has not been given any allotment. 15. In this context, Mr.A.Vijayakumar, brought to the notice of this Court an order passed by the Division Bench in W.A.No.634 to 642 of 2009 dated 08.06.2009 [M.Suresh Kumar v. The Secretary to Government, State of TamilNadu]. The Division Bench in that case in paragraph 4 held as follows:- "4. As far as this aspect is concerned, all that has happened is that the State Government has authorized the Housing Board to allot certain parcel of land and subsequently, on forming an opinion that this will result in a loss of revenue, has decided to cancel/withdraw their earlier G.O. The appellants were not required to do anything in pursuant to that G.O. They were not required to pay a single rupee to the Government. It cannot be said that they have acted to their prejudice in any manner to claim some kind of promissory estoppel against the State Government. It is a matter between the State Government and the Housing Board at that stage. No rights were created in favour of the the persons whose names appeared in that G.O. and therefore, in the totality of the circumstances, if the Government formed an opinion that there was going to be a loss of revenue, it was entitled to issue the second order withdrawing/cancelling the G.O which was issued earlier. In our view, there was no question of providing any hearing to the persons concerned at that stage. We do not find any error on the pat of the learned single Judge in passing the order under appeal." 16. As there is no concluded contract between he petitioner and the third respondent, the petitioner in the guise of third writ petition cannot challenge the Government order, especially when the Government has also now taken a policy decision to dispense with any Discretionary Quota being available with the Government lest, it my be abused. There has been wide spread criticism about the Government having such discretionary quota which is not only repugnant to Article 14 of the Constitution but also likely to be misused by the Government in granting such quota. https://hcservices.ecourts.gov.in/hcservices/ 17. The petitioner cannot enforce a non-existence order and challenge made to the said Government order is unsustainable. The order does not suffer from any legal infirmities. Hence, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. Contempt Petition No.663 of 2011 is filed to punish the respondents for violation of the order passed by this Court. In the circumstances under which those orders came to be passed have been explained. Hence there is no contempt made out. Hence, the contempt petition stands dismissed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. svki To 1.The Secretary to Government, The State of Tamilnadu, Housing and Urban Development (HB5(1)) Department, Fort St. George, Chennai-600 009. 2.The Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai-35. 3.The Secretary and Personal Officer, The Tamilnadu Housing Board 493, Anna Salai, Chennai-600 035. 4.The Executive Engineer & Administrative Officer, Hosur Housing Unit, Tamil Nadu Housing Board, Hosur-635 109 Krishnagiri District. 1 cc to Mr.A. Vijayakumar, Advocate, Sr. 38604 1 cc to Mr.A. Sivaji, Advocate, SR. 38068 W.P.No.10780 of 2008 and Contempt Petition No.663 of 2011 NM (CO) kk 14/7 https://hcservices.ecourts.gov.in/hcservices/