IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.6.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.37010 of 2007 Thenmozhi .. Petitioner Vs. 1. The Tamil Nadu Housing Board rep. by its Chairman 493, Anna Salai Nandanam, Chennai – 35. 2. The Assistant Secretary (Allotment) Tamil Nadu Housing Board 493, Anna Salai Nandanam, Chennai – 35. 3. The Executive Engineer Special Division – IV Tamil Nadu Housing Board Anna Nagar, Chennai – 102. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Mandamus to direct the respondents to restore the allotment of Plot No.981, MIG in Madhavaram Scheme in favour of the petitioner and execute the sale deed on collection of amount payable by the petitioner. For Petitioner : Mr.P.Venkatesan For Respondents: Mr.A.Vijayakumar ORDER The writ petition is for a direction against the respondents to restore the allotment of Plot No.981, MIG Category, in Madhavaram Scheme in favour of the petitioner and execute the sale deed on collection of the amount payable by the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 2.1. It is stated that the third respondent has allotted on 17.10.2001 a residential Plot No.430, MIG category, under Madhavaram Scheme and she was directed to pay the initial amount of ` 85,750/- along with the first instalment of ` 10,000/- and also execute the lease-cum-agreement. She was directed to pay another amount of ` 5,000/- towards maintenance charge and the same was paid on 5.3.2002. 2.2. It is stated that, on 4.11.2003, the petitioner was directed to pay an amount of ` 3,35,750/- on or before 30.11.2003, exclusive of the initial amount paid to the tune of ` 58,000/-. It is stated that on the ground that Plot No.430 was already allotted to somebody else, an undertaking was obtained from the petitioner to cancel the said allotment and on receipt of another amount of ` 45,000/-, another Plot No.981 was allotted to the petitioner, agreeing to adjust the amount already paid. 2.3. There was a further confusion caused by the third respondent on 9.1.2004 stating that the original Plot No.430 has been re-allotted to the petitioner and directing her to pay ` 3,57,750/-. It was in those circumstances, on 26.3.2004, the petitioner has given a letter to return the entire amount of ` 63,000/- paid by her and that was not complied with. 2.4. It is stated that, in the meantime, the previous allottee of Plot No.430, one Subaidha has filed W.P.No.37913 of 2003 and there was an order of injunction granted by this Court on 24.12.2003 and therefore, the petitioner has requested to return the amount. However, the third respondent by letter dated 9.1.2004 directed the petitioner to pay the balance amount in respect of the disputed Plot No.430. 2.5. It is stated that the petitioner has approached the District Consumer Forum, North Chennai by filing O.P.No.393 of 2004 and in these circumstances, the present writ petition is filed for a direction to allot Plot No.981. 3.1. In the counter affidavit filed on behalf of the respondents, it is stated that Plot No.981 in Madhavaram Scheme has already been allotted to one K.Arunachalam on 9.4.1992 and sale deed has been executed on 26.12.2006 and that was before the filing of the writ petition and therefore, the writ petition was not maintainable. 3.2. It is stated that Plot No.430 was allotted to the petitioner on 17.10.2001 in the Madhavaram Scheme and the petitioner paid ` 58,000/- as EMD and ` 5,000/- towards fees for change of plot and on 24.12.2002, the respondents informed the petitioner that her demand for change of plot was not acceptable and requested to pay the balance initial deposit for Plot No.430. https://hcservices.ecourts.gov.in/hcservices/ 3.3. It is stated that Plot No.430 in Madhavaram Scheme was originally allotted to one Subaidha on 29.4.1992 itself and that was cancelled due to non payment of monthly instalments and it was at that time the said Plot No.430 was allotted to the petitioner. It is stated that the said Subaidha has approached this Court and has obtained an order in her favour in respect of re-allotment of Plot No.430 and therefore, the Housing Board was obliged to obey the said order and re-allot Plot No.430 to Subaidha. 3.4. It is stated that as per the auction/agreement condition, the amount already paid by the petitioner could not be refunded or adjusted for any other plot. It is stated that Plot No.981 was already allotted to one Arunachalam, as stated above. The re- allotment of Plot No.430 was made to Subaidha pursuant to the order of this Court dated 7.4.2006 in W.P.No.37913 of 2003 and sale deed has been executed in her favour on 16.10.2006. 4. It is seen that the petitioner has made an application for allotment of a housing site on 17.9.2001 and as per the order of the Executive Engineer, Special Division IV, namely the third respondent, dated 17.10.2001, the offer made by the petitioner has been accepted by the third respondent for allotting Plot No.430, MIG Category, to an extent of 2432 Sq.Ft. on payment of monthly instalments of ` 10,000/- for sixty months. As per the said letter, the petitioner was to pay the balance initial amount of ` 85,750/- and the first monthly instalment of ` 10,000/- by 30.10.2001. 5. However, by a letter dated 6.12.2001, the petitioner has requested the third respondent to allot MIG Plot No.981 and there are records to show that in respect of Plot No.981 she has paid an amount of ` 5,000/-, as it is acknowledged by the third respondent, who has stated that the same has been received by taking note of the representation of the petitioner to allot Plot No.981 instead of Plot No.430. By letter dated 23.12.2002, the third respondent has acknowledged that instead of Plot No.430, Plot No.981 has been allotted to the petitioner. The contents of the said letter, which are relevant, is extracted as follows: "khjtuk; tPl;L kidj; jpl;lj;jpd; kid vz; 431 khw;W kid vz; 981 xJf;fPL mspf;fg;gl;lJ/ jh';fs; ,J ehs; tiu khjj; jtizj; bjhif kw;Wk; Kd; itg;g[j; bjhifapy; kPjk; brYj;jhky; ,Ug;gjhy; ,f;fojk; fpilj;j VG ehl;fSf;Fs; jh';fs; kPjKs;s Kd; itg;gj; bjhifa[ak; khjj; jtiziaa[k; bkhj;jkhf brYj;j ntz;Lk;/ jtwpdhy; j';fSf;F mspf;fg;gl;l xJf;fPL uj;J bra;ag;gl;L ntW egUf;F Vyk; Kyk; xJf;fPL mspf;fg;gLk;. jh';fs; brYj;jpa bjhif tl;of;fhf rhp bra;ag;gLk; vd;gij mwpat[k;/" https://hcservices.ecourts.gov.in/hcservices/ The reason for extracting the said contents is that it is the case of the counsel for the respondents, Mr.A.Vijayakumar that the said letter cannot be taken as a letter of allotment of Plot No.981. A reading of the said letter would make it abundantly clear that this has been an order of acceptance for allotment of Plot No.981 to the petitioner. 6. Having accepted the same, the third respondent, by letter dated 4.11.2003, has reiterated the allotment of Plot No.430 directing the petitioner to pay an amount of ` 3,35,750/-, which amount the petitioner was unable to pay and therefore, by letter dated 28.11.2003, the petitioner has in fact requested for the return of the amount of ` 58,000/- already paid. 7. In the meantime, it appears that one Subaidha has filed W.P.No.37913 of 2003 and filed an interim application not to allot Plot No.430 in favour of any other person by way of lease and an order of injunction was granted on 24.12.2003. It is relevant to point out that by the time the said interim order was passed, the third respondent has already changed the allotment to the petitioner from Plot No.430 to Plot No.981. Ultimately, W.P.No.37913 of 2003 came to be disposed of by this Court by an order dated 7.4.2006 with the following direction:- "The first respondent shall issue a notice, making the demand forthwith, to the writ petitioner claiming the amount due from her in respect of Plot No.430, MIG Colony, Madhavaram Shceme, as on the date of the cancellation namely 6.12.1999 giving time to make the said payment; the writ petitioner shall make the payment within two weeks from the date of receipt of the said communication; on payment of such amount, the first respondent is directed to restore plot No.430, MIG Colony, Madhavaram Scheme, to the writ petitioner; the first respondent shall also re-schedule the payments due by the writ petitioner on such restoration of the plot to her and the writ petitioner shall continue to make the payment as per the re-scheduling." 8. Admittedly, it is based on the said direction given by this Court, the Housing Board has executed sale deed in favour of Subaidha in respect of Plot No.430. It is unfortunate that in spite of the order of injunction granted by this Court in 24.12.2003 directing the Housing Board not to allot Plot No.430 to anyone, the third respondent continued to write letter to the petitioner on 9.1.2004 reiterating that the said plot has not been allotted to anyone and if the petitioner requires the same plot, she should pay ` 3,57,750/-. This is a clear case of contempt committed by the Housing Board. Be that as it may, now that a final order has been passed on 7.4.2006 in https://hcservices.ecourts.gov.in/hcservices/ W.P.No.37913 of 2003 directing Plot No.430 to be given to Subaidha, it is not known as to how such a stand is taken by the Housing Board. 9. It is further astonishing to note that when the petitioner was perplexed, she requested the return of the amount paid by her, namely ` 58,000/- and the Housing Board very peculiarly in the letter dated 12.3.2004 has rejected the said request for refund of amount in spite of the fact that there was no fault on the part of the petitioner. 10. However, the prayer in the writ petition is based on the said letter of the third respondent dated 23.12.2002, by which the third respondent accepted the proposal of the petitioner for allotment of Plot No.981. It is now stated that the said Plot No.981 has been allotted to one Arunachalam. In the information furnished by the respondents under the Right to Information Act dated 22.8.2008, it is stated that the said Plot No.981 was allotted to Arunachalam even on 9.4.1992 and sale deed has been executed in his favour on 26.12.2006. Having allotted the said Plot No.981 to the said Arunachalam, it is not known as to how the third respondent has again written to the petitioner agreeing to allot the same Plot No.981 to her. This only shows that all is not well with the Housing Board at least in respect of the present transaction. 11. In any event, inasmuch as it remains an admitted fact that the sale deed has been executed in respect of Plot No.981 in favour of Arunachalam on 26.12.2006, the prayer of the petitioner for the purpose of allotment of the said Plot No.981 cannot be granted. Granting of such direction will be only a mockery and will only make an infructuous order, which this Court cannot make. Under such circumstances, I am of the considered view that it is not proper to give a direction to the respondents to allot the said plot, even though on the facts and circumstances of the case it is categoric and clear that every step taken by the officials of the Housing Board is not only misleading and mischievous, but also not short of fraudulent act. The respondents can never take a stand on the facts of the present case that they would forfeit the amount paid by the petitioner. There is absolutely no fault on the part of the petitioner and this Court is unable to grant relief to the petitioner due to the reason that the plot has already been allotted and sale deed has already been executed. 12. Accordingly, the writ petition fails and the same is dismissed. At the same time, I am of the considered view that suitable direction must be given to the respondents to redress the grievance of the petitioner at least to minimize the loss of money and mental agony caused to her. In such view of the matter, the respondents are directed to refund the entire amount payable to the petitioner along with interest at the rate of 12% per annum from the https://hcservices.ecourts.gov.in/hcservices/ date of first payment and such amount shall be paid by the respondents within a period of twelve weeks. It is open to the Housing Board to take necessary steps to collect the said amount from the third respondent, whoever was holding the post at that time. It is made clear that if the respondents decide to make allotment of any other plot for which the petitioner is willing, the above said order shall not stand in the way of such allotment. In the event of such arrangement entered between the petitioner and the Housing Board, the respondents shall adjust the amount paid by the petitioner towards the cost of such alternative plot. No costs. Consequently, M.P.No.2 of 2007 and M.P.No.1 of 2009 are closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar sasi TO 1. The Chairman, The Tamil nadu Housing Board, 493, Anna Salai, Nandanam, Chennai 600 035. 2. The Assistant Secretary (Allotment) TNHB, 493, Anna Salai, Nandanam, Chennai 600 035. 3. The Executive Engineer, Special Division-IV, Tamil Nadu Housing Board, Anna Nagar, Chennai 102. + 1 cc to the Government Pleader Sr.32438 + 2 cc to Mr.P. Venkatesan, Sr.32030 W.P.No.37010 of 2007 PKB(CO) Eu 13.6.11 https://hcservices.ecourts.gov.in/hcservices/