IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.20476 of 2009 in M.P.NO.1 OF 2009 Tamilaruvi Manian .. Petitioner Vs. 1.The Government of Tamil Nadu, rep. By its Secretary to Government, Housing Department, Fort St. George, Chennai-9. 2.The Chairman, Tamilnadu Housing Board, Anna Salai, Nandanam, Chennai-35. 3.The Revenue Officer, Tamilnadu Housing Board, 493, Anna Salai, Nandanam, Chennai-35. .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the impugned order of the third respondent herein issued in his letter No.GR-2/59305/2006, dated 23.09.2009 and to quash the same. For Petitioner : Mr.G.Muthukrishnan For Respondents : Mr.P.Wilson, Additional Advocate General - - - - ORDER Heard both sides. https://hcservices.ecourts.gov.in/hcservices/ 2.The petitioner has filed the present writ petition seeking to challenge the order of the third respondent, i.e. Revenue Officer, Tamil Nadu Housing Board, Chennai, dated 23.09.2009 and seek to set aside the same. The petitioner earlier filed a writ petition in W.P.No.7689 of 2009, seeking to challenge the order dated 6.4.2009. By the said order, the respondent issued a show cause notice to the petitioner that he had violated the term No.3(1) of the lease deed. Hence a notice was given in terms of term No.31. 3.Term No.3(1) reads as follows: "3.And whereas the terms and conditions of the Lease have been though fit to be laid down in a written agreement, now this Deed of Agreement has been entered into subject to the following conditions:- (i)The Lease shall be for a period of 11 months only subject to renewal for every 11 months subject to the conditions that the lessee had not violated any of the conditions of the agreement." 4.Likewise, term No.xxxi reads as follows: "(xxxi)"The tenancy may be terminated by either party without assigning any reason, after giving one month's notice to the other party". 5.In essence the contention of the third respondent was that since the lease deed was not renewed after a period of 11 months, he is not entitled to be continued in the tenancy. Therefore, he was directed to vacate the quarters and hand over possession to the Tamil Nadu Housing Board within 30 days. When the petitioner had challenged the said notice, this court held that the petitioner ought to have approached the Board for renewal of lease. Therefore, after disposing of the writ petition, in paragraph 9, it gave the following directions: "9(i)The petitioner is at liberty to make necessary application for renewal of lease within a period of two weeks from the date of receipt of a copy of this order; (ii)On receipt of such application from the petitioner for renewal of lease, the respondents are directed to consider the same strictly in accordance with law; (iii)The clause in the impugned show cause notice terminating the lease is set aside; (iv)The impugned notice shall be treated only as a https://hcservices.ecourts.gov.in/hcservices/ show cause notice for which the petitioner is at liberty to submit his explanation within a period of four weeks from the date of receipt of a copy of this order; (v)Until such a final order is passed on the application of the petitioner for renewal of lease, all proceedings arising out of the impugned show cause notice shall be kept in abeyance and until such time, the pettioner shall not be evicted. (vi)It is clarified that if no application for renewal for lease is made by the petitioner within the stipulated period, the respondents can proceed further on the impugned show cause notice" 6.Pursuant to the direction given by this Court, the petitioner sent a letter, dated 21.8.2009 giving explanations and also by an another letter on the same day, applied for renewal of lease. Since no reply was forthcoming, he had also sought certain information under the Right To Information Act, i.e. names of persons for whom the houses in the Tower Block were allotted under public allotment, the names of persons who are living on rental basis under public quota, number of years they are living in the said quarters and also details whether they have renewed their lease after expiry of allotment at the interval of every 11 months and apart from Kilpauk Tower Block, in various housing projects of the Housing Board, the names of persons who are living on rental under public quota system. The petitioner also got reply from the Information Officer, dated 28.9.2009. However, the second respondent passed an order, dated 23.09.2009, stating that his request for renewal of lease was not feasible and it was rejected and that no person can claim extension for lease of the Government property as a matter of right. Therefore, he was once again directed to vacate the rental quarters, failing which eviction under Section 84(1) of the Housing Board Act will be initiated. It is this order which is under challenge in this writ petition. 7.When the writ petition came up before this court on 24.10.2009, Mr.P.Wilson, the learned Additional Advocate General took notice for the Housing Board and sought time for counter. Since the petitioner was threatened with eviction at any time, this court granted an interim order protecting the continuance of the petitioner in the premises. After several adjournments, on 23.11.2009, a counter affidavit dated 20.11.2009 was filed by the second respondent. The petitioner filed a reply affidavit, dated 26.11.2009 along with an additional typed set of papers containing information furnished by the Information Officer under the RTI Act. 8.It is the case of the petitioner that he was allotted an https://hcservices.ecourts.gov.in/hcservices/ apartment No.A-16 under Tailors Road scheme at Kilpauk on 10.1.2007. The conditions imposed on the allotment order were scrupulously followed by him. With reference to renewal, such renewal was never insisted in the subsequent years 2008 and 2009. The petitioner was allowed to continue in the said quarters. It is only when the original show cause notice came, the petitioner found that the original allotment was for 11 months' lease. But, on an enquiry, it was found that such a condition was never acted upon by any of the allottees, who were allotted apartments under the public quota system. The petitioner alone was singled out of eviction only because of his views expressed in writings on current political affairs through his articles published in various Tamil weeklies and biweeklies, such as Junior Vikatan, Ananda Vikatan, Kumudam and Kumudam Reporter, etc. Provoked by such articles, the second respondent in order to oblige his political master had issued the show cause notice. At no point of time, the Housing Board requested them to renew the lease. It was claimed that several other persons who are occupying the quarters under the public quota system are continuing to reside for long number of years without any further renewal of lease and without similar condition being insisted upon to evict those persons. Therefore, the case of the petitioner is a clear case of hostile discrimination. 9.In the counter affidavit filed by the second respondent, it was stated that the allegation of malafide is not correct. The petitioner was allotted quarters by converting the public quota as a special case in terms of G.O.(2D) No.170, Housing and Urban Development Department, dated 6.12.2006. Pursuant to the G.O., allottment was made in favour of the petitioner by proceedings of the Housing Board, dated 20.12.2006. The petitioner is bound by the terms of the lease. Though Flat No.A-16, Tailors Road was earmarked and reserved for Tamil Nadu Government servants under special circumstances, the flat was converted into public quota and allotted to the petitioner. It was stated that the petitioner was inducted as a member of the Tamil Nadu Planning Commission at that time. 10.In the counter affidavit, they had stated that the petitioner has no locus standi to seek for renewal. Even as per the earlier order of this court, there is no direction to renew the lease in favour of the petitioner. It was further stated that subsequent to the lapse of lease, the petitioner's occupation was unauthorised. Therefore, he is bound to pay the penal rent. Further, it is claimed that the writ petition is not maintainable in the case of this nature. 11.In the reply affidavit filed, it was contended that the show cause notice and the subsequent eviction was only to penalise the petitioner for his honest political dissent expressed through https://hcservices.ecourts.gov.in/hcservices/ various powerful writings in leading Tamil journals. It was only to humiliate him and his family in public. Such eviction was made when there are as many as 280 persons who were allotted quarters under public quota. No renewal of lease was done in their favour and no eviction has been done. It was also claimed that the petitioner has been in public life for more than 40 years right from the student years. He is well known for his integrity and honest. 12.Further, pursuing arguments Mr.G.Muthukrishnan, learned counsel for the petitioner contended that despite being in public life for more than 40 years and being the General Secretary of All India Congress Committee, the petitioner never acquired any wealth and he has been living in rental. It is only when the present Government inducted him as a member of the Tamil Nadu Public Service Commission. Knowing the condition of his economic status, the Government allotted the quarters. But, it does not mean that he should mortgage his views in tune with the current party in power. Therefore, notwithstanding his being a member of the Planning Commission and entrusted with the official car, the petitioner continued to be a critical for both Governments at Centre and the State. Since his position as a member of the Planning Commission may prevent making critical comments, he voluntarily resigned from the Planning Commission and continues to devote his time for public causes. It is only because that he refused to go to the line of the present ruling party, the present eviction came to be made. 13.The learned counsel also drew an attention of the court the information furnished by the Public Information Officer attached to the Housing Board giving details of the Tamil Nadu Government Rental housing scheme quarters being converted to public quota under the Tailors Road scheme and it contains as many as 23 houses. There are many allottees who are living in the quarters right from April, 1998. For example, the quarters in A-19 is occupied by Thiru S.R.Balasubramaniam, a Congress politician and is occupying the same from April, 1998. Likewise, A-18 is occupied by Thiru S.T.K.Jakkiaiyan from August, 2002, who belongs to a political party. B-30 is occupied by one Ms.Salma from December, 2006, who lost election from the ruling party and subsequently, was made as the Chairman of the Social Welfare Board. In none of these cases, there was any attempt to secure any periodical renewal of lease. None of these persons were also evicted from their quarters on the ground of non renewal of lease. Further, none of the allottees were Government Servants for whose benefit allotments were made. 14.Similarly, the learned counsel had also given details of as many as 287 persons who are living under various housing schemes belonging to the Housing Board under public quota system and are paying rental without there being any renewal of so-called lease in https://hcservices.ecourts.gov.in/hcservices/ favour of those persons by the Housing Board. None of those persons were evicted from their quarters. Several number of persons who were given such allotments are also politicians of various kinds and most of them are supporters of the ruling party. Even assuming that there was no renewal of lease in favour of the petitioner, but considering the fact that 287 persons are living in various quarters without renewal of lease but under the public quota system, the present contention raised by the Housing Board is only bogie for evicting the petitioner for not coming with the ruling party line. Hence he contended that the impugned order should be set aside. 15.However, Mr.P.Wilson, learned Additional Advocate General contended that judicial review in such matters are very limited and that the court should not come to the rescue of the petitioner. In this context, he placed reliance upon various judgments. 16.The learned Additional Advocate General referred to the judgment of the Supreme Court in Chandigarh Administration and another Vs. Jagjit Singh and another reported in 1995 (1) SCC 745 for the purpose of contending that an order passed in favour of other persons similarly situated can never be a ground for issuing a writ in favour of the petitioner on the plea of discrimination and if it is investigated that the order in favour of an another person is illegal or unwarranted, the said illegality cannot be perpetuated in favour of a person who comes to court by the discretionary power of the Court. In that case, the Supreme Court found that after cancellation of lease and the amount being forfeited and reduced, the person took back the money only after 17 years on seeing the rise in price approached the court and alleged discrimination. 17.Thereafter, he also relied upon the judgment of the Supreme Court in Union of India v. International Trading Co., reported in 2003 (5) SCC 437. This is for the purpose of contending that if the Government wrongly granted renewal of permit to some other persons, then the person who came to court cannot contend discrimination for not renewal of permit and it does not contemplate repetition of wrong action. The concept of equal treatment presupposes the interest of similar legal foothold and there cannot be a claim for negative equality. 18.The learned Additional Advocate General further relied upon a judgment of the Supreme court in S.R. Radhakrishnan v. Neelamegam reported in (2003) 10 SCC 705 to contend that a mere payment of rent will not make the person tenant and therefore, for non renewal of lease, the petitioner cannot have any right over the apartment in question. 19.He also placed reliance upon the judgment of a division https://hcservices.ecourts.gov.in/hcservices/ bench of this court in A.Durairaj Vs. The Chairman, Tamil Nadu Housing Board, Nandanam, Chennai and two others reported in 2001 (4) CTC 620 to impress upon the proposition that an unauthorized occupant is devoid of title and that the Housing Board has got power to evict and the court cannot interfere with such eviction. 20.The learned Additional Advocate General also relied upon the judgment of the Supreme Court in Union of India v. Ashutosh Kumar Srivastava reported in (2002) 1 SCC 188 for the purpose of contending that bias on the part of the Chairman cannot be accepted. In that case, it was held that there cannot be any presume of bias only on the basis that the Chairman was having close relationship with another person and hence the actions are vitiated. 21.The learned counsel also relied upon a judgment of the Supreme Court in Vishal Properties (P) Ltd. v. State of Uttar Pradesh reported in (2007) 11 SCC 172 for contending that Article 14 is not meant for perpetuate illegality. It provides for positive equality and not negative equality. 22.He also referred to the judgment of an another division bench of this court in Director General of Foreign Trade Vs. R.B. & Sons and another reported in 2004 (5) CTC 696 that while extending the period of licence, the authority concerned only can decide the period for which license was granted and it cannot be extended and that the court must show judicial restraint over such action. 23.The learned Additional Advocate General also stated as to how the scheme of Tailors' road was conceived as a primary scheme for the Government servants' rental housing scheme meant for Government officers. The petitioner is not holding any Government post. This argument failed to take into account some of the terms under the public quota in the Government Order in G.O.(2D)No.170, Housing and Urban Development Department, dated 6.12.2006. The apartment in A-16 was specifically allotted under the public quota. Therefore, the induction of the petitioner into the said apartment was lawful. 24.The other issue is whether the petitioner is to be evicted on the basis of the non renewal of lease after 11 months after the initial allotment? The Housing Board had not insisted upon such renewal for other similarly placed allottees. Even in case of the petitioner, he was allowed to continue for another two years without renewal. Therefore, it cannot be said that the petitioner had violated the terms of allotment. The stand of the Housing Board seems to be diabolical. In the case of the petitioner, they had invented a ground for eviction. For that purpose, term No.3(1) was invented by them. If such violation is so serious, then they should https://hcservices.ecourts.gov.in/hcservices/ have taken such action in respect of another 287 persons, who were allotted quarters under public quota system and who are residing in various apartments owned by the Housing Board without such renewal. 25.The allegations of the petitioner are supported by queries made by him under the RTI Act. The subsequent reply obtained by him and referred to in the affidavit was not denied. Even before this court, the learned Additional Advocate General could not inform this court the details of such allotment and whether those persons who were allotted have applied for renewal and whether any renewal was granted in their favour. That was why the learned Additional Advocate General took the short circuit by stating that even though allottees were continued on illegal basis, that cannot be a ground for the petitioner to continue in the same apartment or seek for a direction through the court to continue in the said apartment. 26.Section 84 of the Tamil Nadu Housing Board act gives power to the Housing Board to evict persons from the Board premises for the reasons specified therein. It is not their case that the petitioner did not pay rent assigned to the apartment and that he had sublet without the permission of the Board to any other person. In order to bring a ground for eviction, the respondents had invented a ground that he had contravened the terms of allotment, i.e. he did not renew his lease after a period of 11 months. If this allegation is taken seriously, then there was no action taken during the years 2007 and 2008. Therefore, there may be reason for the counsel for the petitioner to contend that provocation due to his political articles in the leading Tamil journals, could be a ground which must have triggered to take the present action, thereby singled out the petitioner among 287 similarly placed allottees. 27.The judicial pronouncements have come about in such a way that even apart from proving the possession to be unauthorized, courts are required to be satisfied of a further test of a reasonableness of the action of the landlord. In M/s Dwarkadas Marfatia and Sons Versus Board of Trustees of the Port of Bombay- (1989) 3 Supreme Court Cases 293, the Hon'ble Supreme Court held that all actions including the contractual dealings of a State or its instrumentality shall be subjected to judicial review. A Court could see if such body had followed the statutory purpose and acted in public interest and not in mala fide or arbitrary or for a collateral purpose. The burden would always lie on a person assailing the action. The Court was considering an action for eviction by Port Trust, an exempted landlord under the Rent Act. The Court, while holding public authority of the landlord are not expected to behave like private landlord but only for public benefit or public purpose, ruled that the issue whether they have acted in such public benefit or public authorities would be open to judicial https://hcservices.ecourts.gov.in/hcservices/ review. On facts, the public authority in that case had filed a small cause suit which was resisted as a mala fide action and for improper notice. The trial Court dismissed the suit on improper notice and did not go on the question of mala fides. The Appellate Court reversed the decision upholding the validity of the notice and held that the question of mala fide was not relevant on the legality of eviction and in the writ proceeding also, the High Court concurred with the Appellate Court. The Hon'ble Supreme Court however upheld the right of judicial review in such actions but on such a factual consideration found that there is no mala fide in the action of the landlord. 28.If it is merely a case of unauthorized occupant being sought to be evicted, no other consideration would probably arise. The landlord can rest on the mere fact of expiry of the period of lease and seek for eviction. In this case, the right of the landlord to take action for eviction is objected by the tenants on a fundamental premise that it is grossly unfair and discriminatory. To decide the question of fairness of the act of the landlord without there being any evidence relating to the damage to the property or unauthorized user which could be evidenced only through the terms of the lease is well nigh impossible. The landlord cannot succeed in his attempt unless he shows the equities in his actions. 29.The decision in Dwarkadas's case (cited supra) came to be quoted with approval in several subsequent decisions of the Supreme Court. It is worthwhile to refer to some of these decisions. 30.The Supreme Court vide its decision in State of Karnataka v. All India Manufacturers Organisation reported in (2006) 4 SCC 683 has held that a remedy under Article 226 is available in cases of a statutory body acting unreasonably. The following passage found in para 59 can be usefully quoted: "59. Mr Divan strongly urged that the relief granted was wholly beyond the jurisdiction of the High Court under Article 226 of the Constitution, as it would amount to granting a decree for specific performance in writ jurisdiction. A reading of the relief granted by the High Court does not persuade us that it is so. The High Court merely directed that the Project and the FWA, as conceived originally and upheld by the High Court in Somashekar Reddy1, should be implemented “in letter and spirit”. In other words, the High Court said that there is no scope for raising frivolous and mala fide objections for ulterior purposes. This, the High Court was fully entitled to do. It is trite https://hcservices.ecourts.gov.in/hcservices/ law that when one of the contracting parties is “State” within the meaning of Article 12 of the Constitution, it does not cease to enjoy the character of “State” and, therefore, it is subjected to all the obligations that “State” has under the Constitution. When the State’s acts of omission or commission are tainted with extreme arbitrariness and with mala fides, it is certainly subject to interference by the constitutional courts in this country. We may refer to Gujarat State Financial Corpn. v. Lotus Hotels (P) Ltd. (1983 (3) SCC 379) in which a statutory corporation (the Gujarat State Financial Corporation) arbitrarily refused to grant the sanction of loans to entrepreneurs who had already acted on the basis of the sanction and had incurred expenditure and liabilities. The argument that the transaction was purely a contractual arrangement between the parties and, therefore, not amenable to writ jurisdiction, was categorically rejected by the following observations: “13. Now if appellant entered into a solemn contract in discharge and performance of its statutory duty and the respondent acted upon it, the statutory corporation cannot be allowed to act arbitrarily so as to cause harm and injury, flowing from its unreasonable conduct, to the respondent. In such a situation, the Court is not powerless from holding the appellant to its promise and it can be enforced by a writ of mandamus directing it to perform its statutory duty. A petition under Article 226 of the Constitution would certainly lie to direct performance of a statutory duty