IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.03.2008 C O R A M THE HONOURABLE Mr.JUSTICE P.JYOTHIMANI W.P.No.3852 of 2007 & M.P.No. 1 of 2007 N.Balusamy .. Petitioner -Vs- 1. The State of Tamilnadu, Rep. by its Secretary to Government, Housing and Urban Development Department, Fort St. George, Chennai – 600 009. 2. The Tamilnadu Housing Board, represented by its Managing Director, Anna Salai, Nandanam, Chennai – 600 035. 3. The Executive Engineer and Administrative Officer, Tamilnadu Housing Board, Kalaignar Karunanidhi Nagar Division, Ashok Nagar Shopping Complex, Chennai – 600 083. .. Respondents Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus calling for the records relating to the 1st respondent vide G.O.(2D) No.283 H & U Dev. Dept (HB-5(1)) Dept. dated 04.11.2004 and the 3rd respondent Letter No.KK.NA-1/4432/04 dated 06.01.2007 and to quash the conditions contained in paragraph 5 of the 1st respondent's order dated 04.11.2004 in so far as it directs to re-allot the plot No.47/C2 at K.K.Nagar to the petitioner on payment of cost to be fixed by 2nd respondent Board and consequently the 3rd respondent Letter No.KK.NA-1/4432/04 dated 06.01.2007 so as to restore the allotment of plot No.47/C2 at K.K.Nagar on payment of the cost of the plot, pursuant to the regular allotment order in letter No.G2/13663/87 dated 15.04.1988. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.R.Muthukumarasamy Senior Counsel for Mr.P.Arivudainambi For Respondents : Mr.P.S.Raman Additional Advocate General Assisted by Mr.L.S.M.Hasan Fizal, Government Advocate for R1 and Mr.R.Girirajan, standing counsel for TNHB for R2 & R3. O R D E R This writ petition is filed challenging the Government Order in G.O.(2D)No.283, Housing and Urban Development (HB-5(1)) Department dated 04.11.2004 and the order of the third respondent dated 06.01.2007, in so far as the condition in the Government Order relating to re-allotment of Plot No.47/C2 at K.K.Nagar to the petitioner on payment of cost to be fixed by the Tamil Nadu Housing Board as per the rules and the third respondents' direction in the letter dated 06.01.2007, in fixing the cost of the plot and directing restoration of the Plot No.47/C2 at K.K.Nagar on payment of cost pursuant to the regular allotment order dated 15.04.1988. 2. It is the case of the petitioner that he made application for allotment of a house site and ultimately the second respondent has allotted house site bearing No.47/C2 at Kalaignar Karunanidhi Nagar, Chennai – 600 083 and the regular allotment order dated 15.04.1988 was issued and the same is Higher Income Group Plots and possession was handed over to the petitioner on 27.07.1988. The Government has cancelled the allotment of 139 vacant plots including that of the petitioner as per G.O.Ms.No.1048, Housing and Urban Development dated 31.10.1989, against which the petitioner has filed W.P.No.148 of 1990 challenging the said Government Order. The batch of writ petitions including that of the petitioner was allowed by this Court by an order dated 29.01.1990, by quashing G.O.Ms.No.1048 Housing and Urban Development dated 31.10.1989 on the ground that no notice was given and liberty was given to the Housing Board to cancel allotment if warranted after giving notice to the allottees. Thereafter, the second respondent issued show cause Notice dated 03.05.1990, for which the petitioner has given explanation on 30.08.1990 and by an order dated 30.10.1990, the second respondent has again cancelled the allotment. 3. The petitioner has filed appeal before the Appellate Authority, the Government of Tamilnadu dated 03.12.1990, which was rejected on 18.08.1993. Thereafter, the petitioner filed writ petition in W.P.No.21282 of 1993, challenging the cancellation order dated 30.10.1990, passed by the second respondent as confirmed by the Appellate Authority on 18.08.1993 and for further https://hcservices.ecourts.gov.in/hcservices/ direction. The said writ petition was ultimately dismissed on 24.10.2000. The appeal filed against the said order was allowed by the Division Bench of this Court in W.A.No.2207 of 2000 on 14.03.2001, setting side the order passed in the writ petition. That resulted in the cancellation of allotment stood set aside. 4. Again the second respondent issued notice on 30.01.2002 stating that the allotment was made by mistake, since the petitioner has not furnished the income of his spouse and there is suppression of facts. The petitioner submitted his explanation on 14.02.2002 and also informed that the Division Bench by allowing W.A.No.2207 of 2000 has categorically set aside the order of cancellation of allotment and it was thereafter, the second respondent has withdrawn the notice dated 30.01.2002. Since no allotment was made in spite of the order of the Division Bench, the petitioner has issued notice on 10.06.2002 and subsequent reminder on 11.09.2002 and also made application to the Government on 16.12.2002. It was thereafter, the Government passed G.O.(2D) 283 Housing and Urban Development Department dated 04.11.2004, directing the second respondent Tamil Nadu Housing Board to re- allot the same Plot No.47/C2 at K.K.Nagar on payment of cost to be fixed by the Tamil Nadu Housing Board. 5. Since the second respondent has not allotted even after the Government Order, the petitioner filed W.P.No.27484 of 2005 for a direction to restore the Plot No.47/C2 at K.K.Nagar as per the above said Government Order and execute the sale deed on repayment of the entire cost, refunded by the second respondent with difference in cost on par with the allotment dated 15.04.1988. This Court disposed of the writ petition by an order dated 06.10.2005 directing the second respondent to pass orders regarding the allotment. Thereafter, the petitioner has made many representations. It was by a communication dated 07.12.2006, the third respondent has required the petitioner to produce some documents regarding proof of age, Social Worker Certificate and direction to register the application form duly filled in by paying Rs.400/- as registration fees. 6. The petitioner has understood that the third respondent has called for particulars for the purpose of treating it as a fresh allotment based on the wordings in the G.O.(2D) 283 dated 04.11.2004, namely “to re-allot”. The third respondent has also passed the other impugned order dated 06.01.2007, informing that the provisional cost of the plot previously allotted works out to Rs.1,20,33,000/-. The said orders are challenged on various grounds including that the order passed is arbitrary and illegal affecting the fundamental right of the petitioner guaranteed under Article 14 of the Constitution of India and also the fixation of unreasonable cost of Rs.1,20,33,000/- while the original cost in https://hcservices.ecourts.gov.in/hcservices/ 1988 when the allotments was made for the same plot was Rs.1,33,700/-. 7. The second and the third respondents have filed counter affidavit. While it is admitted that originally when the allotment for the same plot was made on 15.04.1998, the cost of the plot was fixed at Rs.1,33,700/- and the extent of the plot is one ground and 1611 sq.ft. While it is admitted that subsequently the said allotment was cancelled and in the batch of writ petitions the cancellation was set aside by the High Court and the appeal filed against the dismissal in W.A.No.650 of 1994 was also dismissed on 25.01.1995 and the same has become final. Since no re-allotment was made, the petitioner has filed a separate writ petition in W.P.No.21282 of 1993 and subsequently the writ appeal in W.A.No.2207 of 2000 for re-allotment of Plot No.47/2C at K.K.Nagar on par with other allottees who suffered similar cancellation and as per the direction of the Division Bench dated 14.03.2000, the petitioner was restored the plot. In all the cases after allotment was cancelled amount was refunded with 8% interest including that of the petitioner. While re-allotment was made, the cost of the plot was fixed on the date of original allotment with interest and penal interest were added as per Board Resolution dated 30.10.1995. 8. Further in the counter it is stated that the petitioner has filed another writ petition in W.P.No.27484 of 2005 which was disposed of with a direction to pass order of allotment of the plot. It was thereafter, the allotment was made to the petitioner by fixing the cost as Rs.1,20,33,000/- with request to pay the initial payment of Rs.30,08,250/- on or before 31.01.2007. It is stated by the second and third respondents that possession of the plot was handed over to the petitioner on 27.07.1988. It is also admitted that subsequent cancellation of the allotment on the basis of income criteria was withdrawn by letter dated 09.03.2002. It is also specifically stated in paragraph 10 of the counter affidavit that the Government passed G.O.(2D) No.283, dated 04.11.2004, approved the proposal of re-allotment of Plot No.47/C2 at K.K.Nagar to the petitioner in pursuance to the Judgment passed in W.A.No.2207 of 2000. It is the case of the respondents that Pricing Committee of the respondents have fixed the price and recommended the cost as Rs.1,20,33,000/-. It is also their further case that not only allotment given to the petitioner was cancelled, the petitioner has received the initial deposit along with interest. 9. Mr.R.Muthukumarasamy, learned senior counsel appearing for the petitioner would submit that on the factual position in this case when the writ appeal filed by the petitioner in W.A.No.2207 of 2000 was allowed on 14.03.2001, by which the cancellation of allotment dated 30.10.1990, stood set aside with the result the https://hcservices.ecourts.gov.in/hcservices/ petitioner is entitled for restoration of original allotment dated 15.04.1998 and in such circumstances, there is no question of fixing fresh cost as it is seen in the impugned order treating as fresh allotment. It is also his further case that in similar circumstances in respect of 41 persons, the allotment was restored on the same cost and in respect of one person, the allotment was restored however with interest and penal interest. According to the learned senior counsel, the petitioner should have been atleast restored on the basis of payment of interest and penal interest as it was done in respect of one person. He would make such submission based on the information received by the petitioner under the Right to Information Act. The learned senior counsel further submitted that in similar circumstances, this Court in respect of one T.Senthil Vadivel in W.P.No.804 of 1996 by an order dated 08.11.1997, has directed restoration of possession on the same cost as it was done in the original allotment. 10. On the other hand Mr.P.S.Raman, learned Additional Advocate General, appearing for the respondents would submit that the petitioner himself has filed W.P.No.27484 of 2005 for a direction against the respondents to implement G.O.(2D) 283, dated 04.11.2004 and execute the sale deed, in which a direction was given to consider the claim and pass appropriate orders and thereafter by an order dated 07.12.06, the Tamil Nadu Housing Board has informed the petitioner that Plot No.47/C2 at K.K.Nagar has been allotted to him and directing him to furnish some particulars regarding proof of age, Social Worker Certificate etc., Therefore, according to the learned Additional Advocate General, the said order amounting to fresh allotment and therefore the cost has been fixed by the Pricing Committee as intimated in the impugned order dated 06.01.2007 and it is neither illegal or improper. The files relating to the allotment has been produced before this Court. 11. Heard Mr.R.Muthukumarasamy, learned senior counsel appearing for the petitioner and Mr.P.S.Raman learned Additional Advocate General appearing for the respondents and perused the files. 12. The plot No.47/C2 at K.K.Nagar to an extent of one ground and 1611 Sq.ft was allotted to the petitioner on 15.04.1998 and at that time the tentative cost was Rs.1,33,700/-. By virtue of G.O.Ms.No.1048 dated 31.10.1989 and on the basis that the place allotted were grounds meant for public purpose converted to residential use the allotments came to be cancelled and ultimately when the said G.O. was challenged, the batch of writ petitions came to be allowed by which G.O.Ms.No.1048 dated 31.10.1998 was quashed. Writ appeal filed by the Government in W.A.No.650 of 1994, was dismissed and thereafter the Government passed G.O.Ms.No.615 dated https://hcservices.ecourts.gov.in/hcservices/ 25.01.1995 issuing orders to implement the orders of the Division Bench. In the said order, the Government has made it clear by directing the Charmian and Managing Director of the Tamil Nadu Housing Board to take necessary steps to restore the allotment of plots in respect of those allottees who have filed writ petitions. The relevant portion of the said order is as follows: “4. The Government after careful consideration and due consultation with Legal Officers have decided that there is no case to file Special Leave Petition before the Supreme Court of India against the orders of High Court in Writ Appeal Nos.650/94 etc. the Government have therefore decided to implement the orders of the Division Bench of High Court of Madras dated 25.1.95 in the Writ Appeal No.650/94 etc. (Batch cases). Accordingly the Managing Director, Tamil Nadu Housing Board is requested to take necessary further action to restore the allotment of plots in respect of those allottees who have filed writ petitions as mentioned in the Annexure to this order, challenging the cancellation of allotments issued by the Tamil Nadu Housing Board based on the orders issued in G.O.Ms.No.1048 Housing and Urban Development Department, dated 31.10.89, and covered in the above judgment of the High Court of Madras dated 25.1.95 and complete all the formalities i.e. payment of cost of plot, convey of titles within two months from the date of issue of this order, and also subject to usual terms and conditions prescribed by the Tamil Nadu Housing Board in its Allotment Rules.” (Emphasis supplied) 13. Even though the writ petitioner is not the one among the persons mentioned in the Annexure to the said G.O., according the the learned senior counsel appearing for the petitioner he is similarly situated which is also not in much dispute. It is the case of the petitioner that out of 41 persons who are mentioned in the Annexure to G.O.Ms.No.615, Housing and Urban Development (HB.5 (1)) Department dated 11.07.1995, 40 persons have been restored allotment to their concerned plots at the same cost which was originally fixed in 1988 and in respect of those cases, it is not in dispute that no interest was collected, while the amount of original cost which was earlier returned by the Tamil Nadu Housing Board was directed to be repaid. 14. It is also seen that in respect of one other person T.Senthil Vadivel, who is also similarly situated as that of the petitioner, has filed W.P.No.804 of 1996 for a direction to re- allot the plot, in which this Court by an order dated 01.11.1997, based on the order in W.P.No.18715 of 1990 dated 19.09.1991 and judgment in W.A.No.650 of 1994 dated 25.01.1995, directed the Tamil Nadu Housing Board to re-allot and hand over the plot within eight weeks stating that the petitioner shall be liable to pay the cost https://hcservices.ecourts.gov.in/hcservices/ of the plot as was originally fixed and he shall not be liable to pay interest. The operative portion of the order is as follows: “3. The Standing Counsel for the Tamil Nadu Housing Board represented that G.O.Ms.No.1048 dated 31.10.89 has been quashed by this Court and the same has been confirmed in the writ appeal also. Subsequently, G.O.Ms.No.615 dated 11.7.95 was issued re-allotting 41 plots. As such the petitioner is also entitled to identical treatment. This is recorded. Following the Judgment by Bakthavatsalam, J. in W.P.No.18715/90 dated 19.9.91 and the judgment in Writ Appeal No.650/94 dated 25.1.95 the writ petition could be allowed. This representation of the Learned Counsel for the respondent is recorded. This Court appreciates the fairness with which the learned counsel for the respondent had submitted the above facts and correct legal position. 4. Under these circumstances, the writ petition is allowed and the respondents are directed to re-allot and handover the plot within eight weeks from today. The petitioner shall be liable to pay the cost of the plot as was originally fixed, but he shall not be liable to pay interest. The writ petition is allowed. No costs.” 15. It is not in dispute that in all those cases also the original cost fixed by the Tamil Nadu Housing Board was refunded with interest. A reference to the proceedings of the Chairman of the Tamil Nadu Housing Board (1.3/65433/92) which is the communication received by the petitioner under the Right to Information Act regarding Resolution No.9.02 dated 30.10.1995, shows that the Board has resolved to charge in respect of cancellation of allotments and then re-allotment after the order of the Division Bench in the writ appeal, the then prevailing Board fixed rates to the plots and interest for the period from the date of cancellation to the date of restoration. The communication received by the petitioner under the Right to Information Act regarding the resolution of the Board is as follows: “Sub: TNHB – Allotment of Plots in Various Places in City by converting Public purpose site into residential plots – canceled and reallotted to same persons as per Court / Government - Orders – Waiver interest and Penal Interest – Matter placed before the Board for taking a decision. (I.3/65433/92) Managing Director Chairman Resolution No.9.02 Date 30.10.1995 “Board resolved to approve the proposal subject to the following conditions:- https://hcservices.ecourts.gov.in/hcservices/ 1. Charging the then prevailing Board fixed rates to the plots and interest for the period from the date of cancellation to the date of restoration; and 2. Charging the penal interest as per rules in force also treating the period from the date of cancellation to date of restoration as belated period. 3. Extending a nominal interest of 8% to the allottees in payment towards cost of plot are with us, that too for specific period only”. Sd/-N.BALAGANGA, CHAIRMAN, TAMIL NADU HOUISNG BOARD” Therefore, in respect of the allotment effected in 1988 which was cancelled, there was at least two set of persons namely one for whom the allotment has been restored on the same cost as originally fixed in the original allotment and other in respect of restoration of allotment however with interest, belated payment and so on. 16. As far as the petitioner is concerned, it is seen that the petitioner has filed W.P.No.21282 of 1993 which was dismissed by this Court on 24.10.2000. However, on appeal by the petitioner the Division Bench in W.A.No.2207 of 2000 by judgment dated 14.03.2001, while allowing the appeal has held that as far as the grounds raised by the Tamil Nadu Housing Board regarding restoration of allotment, the matter has already been settled by the Division Bench in W.A.No.650 of 1994 etc., batch in the order dated 25.01.1995. However, it was only in respect of the income criteria to which the petitioner belongs, when the Housing Board has raised the point for the first time that the petitioner does not belonged to High Income Group, the Division Bench has left it open to the Board to give fresh notice to the petitioner regarding financial status and pass orders if there is any misrepresentation. The operative portion of the judgment of the Division Bench is as follows: “9. In the result, the appeal is allowed, the order passed in the writ petition is set aside and consequently the writ petition is allowed. However, before closing, we must make a mention that it will be open to the Board to give a fresh notice, if the Board is still of the opinion that the petitioner has mis-represented to it as regards his financial status. The petitioner also will have the opportunity to meet that notice fully if so given. With this observation, we dispose of the Writ Appeal in the light of the observations made.” 17. It was thereafter, by referring to the observations of the Division Bench as stated above, regarding the financial status of https://hcservices.ecourts.gov.in/hcservices/ the petitioner, the Government has passed G.O.(2D) No.283, dated 04.11.2004 without any reference to the financial status of the petitioner by giving up the new plea raised before the Division Bench that the petitioner has misrepresented the financial status as he is coming under the High Income Group and taking note of the fact that the plot which was originally offered remained vacant free from encroachment has directed the re-allotment of the same plot however stating that it shall be on payment of the cost fixed by the Tamil Nadu Housing Board as per rules in force. The said G.O. is as follows:- “Abstract Housing – Tamil Nadu Housing Board – K.K.Nagar Division – W.A.No.2207/2000 on the file of High Court filed by Thiru.N.Balusamy against the cancellation of allotment of plot No.47/C2 at K.K.Nagar – Re-allotment – Orders – Issued. Housing and Urban Development (HB5(1)) Departmental G.O.(2D).No.283 Dated: 4.11.2004 Read:- 1. G.O.Ms.No.1048, Housing and Urban Development Department, dated 31.10.89. Read again:- 2. From the High Court order dt.14.3.2001 in W.A.No.2207/2000 in CMP No.18183/2000. 3. Thiru. N.Balusamy, Anna Nagar application dt.5.5.2001 and 16.12.2002. 4. From the C.E(i/c) Tamil Nadu Housing Board Lt.No.Allot1(5)/45110/2002, dt.27.2.2003. 5. From the Secretary & Personnel Officer, Tamil Nadu Housing Board, Lr.No.Allot 1- 5/45110/2002, dt.22.7.2004. ===== ORDER: In the G.O. first read above Government cancelled the orders issued for allotment of plots in several scheme areas on the ground that these plots were irregularly allotted as the plots meant for the public purpose. 2. In the reference second read above the High Court, Chennai in its judgment dated 14.03.2001, allowed the W.A.No.2207/2000 and CMP No.19183/2000 with observation that :”it will be open to the Board to give a fresh notice, if the Board is still of the opinion that the petitioner has misrepresented to it as regards his https://hcservices.ecourts.gov.in/hcservices/ financial status and that the petitioner also will have the opportunity to meet that notice fully, if so given, with this observation. 3. In the reference third read above, Thiru.N.Balusamy has requested the Government to quash the order of cancelling the allotment of Plot No.47/C2 in K.K.Nagar, Chennai and to receive the cost of the plot and to execute the sale deed in his favour. 4. In the reference forth and fifth read above, the Managing Director, Tamil Nadu Housing Board has stated that the allotment was cancelled in G.O.Ms.No.1048, Housing and Urban Development, dated 31.10.99 and the entire amount paid by the allottee has been refunded. The Housing Board has reported that the plot is still vacant and it is free from encroachment. It is observed that the issue that the petitioner is not eligible for allotment of H.I.G. plot should have been taken up at the time of allotment instead of cancelling the allotment after collecting the deposit amount for the plot from the petitioner. 5. In view of this, the Government after careful consideration, to re-allot the Plot No.47/C2 at K.K.Nagar to Thiru. N.Balusamy on payment of cost to be fixed by the Tamil Nadu Housing Board as per rules in force. 6. The Managing Director, Tamil Nadu Housing Board is requested to take action accordingly. (By order of the Governor) Lal Rawna Sailo, Secretary to Government.” 18. While it is not in dispute that the petitioner is equally situated as that of the other persons who have been restored their original allotment, there is no difficulty in coming to the conclusion that the petitioner is entitled for similar treatment especially in the circumstances that when W.A.No.2207 of 2000 filed by the petitioner was allowed by the Division Bench, however giving liberty to the Tamil Nadu Housing Board to give notice regarding financial status, which liberty has not been exercised by the Tamil Nadu Housing Board, which means that the Tamil Nadu Housing Board has accepted to treat the petitioner as eligible and on par with other persons whose allotment was originally cancelled and restored subsequently on the same cost. The only ground taken by the respondent Housing Board regarding para '5' of G.O.(2D) No.283 dated 04.11.2004, wherein the Government has used the words 're- allot' and 'payment of cost to be fixed by the Tamil Nadu Housing https://hcservices.ecourts.gov.in/hcservices/ Board as per rules in force”. It is based on this said paragraph 5 of the G.O. the subsequent impugned order dated 06.01.2007, has been issued by fixing