In W.P.No.39405 of 2006, the petitioner has sought for a Writ of Certiorari to quash the proceedings of the Secretary to Government, Housing and Urban Development Department, dated 02.06.1999, by which, his request for conversion of a rental house into own house by Hire Purchase Scheme on payment of appropriate charges, has been rejected.
2. In W.P.No.17657 of 2008, the petitioner has challenged the order of the Government in G.O.(D) No.236, Housing and Urban Development [LA.4(1)] Department, dated 08.07.2008, by which, the appeal preferred by him for conversion of a rental house into own house by Hire Purchase Scheme on payment of appropriate charges, has been rejected. Consequently, he has prayed for a direction to the respondents to implement the Board's resolution No.9/02, dated 28.07.1993, by converting the rental house allotted under public rental quota into hire purchase basis.
3. As pleadings are common in both the Writ Petitions, this Court deems it fit to dispose of the same by a common order.
4. According to the petitioner, his father, Late Munu Adhi, former Chairman of the Housing Board, by his letter, dated 21.06.1993 made a request to the Tamil Nadu Housing Board to convert the rental house into own house by Hire Purchase Scheme, on payment of appropriate charges that may be fixed by the Tamil Nadu Housing Board. He further submitted the Housing Board in various occasions have recommended for conversion of rental house to hire purchase ownership. By resolution No.9.02, dated 28.07.1993, the Board resolved that the land price be fixed at Rs.1,94,000/- per ground and sent proposals to the Government for conversion and allot the said house to the petitioner's father.
5. In the meanwhile, a Writ Petition in W.P.No.18760 of 1993 was filed by Madras Citizens Progressive Council to restrain the government from giving effect to the resolution No.9/02, dated 28.07.1993, of the Housing Board to the petitioner's father. The said Writ Petition was dismissed with the observations, that it is only for the government to take a final decision on the correctness of the recommendations of the Board.
6. Taking this court through the resolution dated 28.07.1993, of the Housing Board, Mr.K.M.Vijayan, learned Senior Counsel for the petitioner submitted that the resolution is a promise made by the Board to the petitioner's father to convert a rental house into own house by hire purchase scheme during his life time, and therefore, it is not open to the respondents to turn around and contend that the board has taken a policy decision and passed a resolution No.34 dated 30.12.1985 not to convert rental allotment to own house on hire purchase basis. Placing reliance on a decision of this Court in Arunodhayam, P v. Secretary to Government reported in 2008(3) CTC 563, he submitted that the promise given to the petitioner's father is binding on the respondents and that they are estopped in law.
7. Learned senior Counsel further submitted that, though resolution of the Board, dated 30.12.1985, has been cited as a reason for rejection, but even after the said decision, the board has passed several resolutions converting Housing Board Plots given initially on rental basis into own house under Hire Purchase Scheme, in the case of (1) Mrs.Leela Devarajan at Door No.11 Model House Road, Nandanam, Chennai, (2) Mr.Saidaiduraisamy, No.19, First Main Road, C.I.T. Nagar, and (3) Mr.Neelanarayanan, Door No.63 First Main Road, C.I.T. Nagar, Chennai.
8. Referring to the Board's resolution No.1318 dated 07.11.1990, in the case Mr.Neelanarayanan, resolved much later than the policy decision of the year 1985, learned Senior Counsel further submitted that the Board and the Government have adopted different yardsticks for reasons best known to them. Inviting the attention of this Court, to the impugned order of rejection, and to the averments made in the counter affidavit, he further submitted, that though the Writ petitioner has pointed out various instances stated supra, the respondents have not adverted to the specific acts of discrimination and therefore, violation of
Article 14 of the Constitution of India is per se evident.
9. Learned Senior Counsel further submitted that, when the request of the petitioner's father was rejected in Government letter No.226, dated 02.06.1999, the Board has failed to consider the recommendations, dated 28.07.1993, and therefore the impugned order is arbitrary. The said letter, dated 02.06.1999, was served on the petitioner only in the year 2006, in response to an order of this Court made in W.P.No.22663 of 2006 dated 17.07.2006, and till such time, the petitioner was not aware of any such order. According to him, when the Board's resolution dated 28.07.1993 confers a substantial right to the petitioner seek for conversion. When the said resolution has been communicated to the petitioner only recently ni the year 2006, the petitioner should not be non-suited on technical grounds of delay. According to him, there is no delay in approaching this Court. Taking this Court through the letter, dated 07.11.2005, Learned Senior Counsel further submitted that the Board's resolution taken on 31.12.1985 cannot be put against the petitioner or his father for rejecting their request for conversion, in view of the subsequent resolution of the Board, dated 28.07.1993 to convert the rental house into hire purchase notifying the cost of building and the latter resolution of the year 1993, has not been properly adverted to in the rejection orders, dated 02.06.1999 and 07.11.2005.
10. Learned Senior counsel for the petitioner further submitted that the petitioner's father was prompt in payments of rent and after his demise, the petitioner has also continued to pay the rent fixed by the Board without any default. Referring to Section 72 of the Tamil Nadu Housing Board Act, he submitted that, when possession and enjoyment of the petitioner has been recognised by the Board for so many years and when the case of the petitioner does not fall under any one of the conditions stated in sub section (1) of Section 84 of the Act, he cannot be treated as an unauthorised person against whom eviction proceedings can be initiated.
11. Referring to the procedure contemplated under the Board's Regulation, he submitted that Form-E notice contemplated under the regulations has not been served on the petitioner and that no enquiry has been conducted. He therefore submitted, though the petitioner was given a show cause notice, for which he has promptly responded, the procedure stated supra has not been followed, and therefore, there is procedural irregularity in the impugned order of eviction.
12. According to the learned Senior Counsel, the resolution, dated 28.07.1993, of the Board cannot be varied or changed by the Government and as per the statutory provisions, the Board is the final authority, in so far as implementation of the said decision regarding conversion is concerned. He further submitted that no approval is required from the government for conversion and if at all, any order is required, it is only a formal and ministerial act of confirming the Board's decision. According to him, the petitioner, as the legal heir of the Original allottee, has a pre-emptory right to continue in possession and seek for conversion, as per section 72 of the Act and the orders impugned in this Writ petitions, are not traceable to any Statutory provision in the Act conferring any discretion or authority to the government to vary or change or reject the Board's recommendations and hence, the rejection orders are illegal, arbitrary and without jurisdiction. In support of his contention, he relied on a decision of this Court in Ayyavoo, R., Dr. v. the Director of Extension Education, T.N. Agricultural University, Coimbatore reported in 1991 Writ L.R. 621.
13. The Chief Revenue Officer, Tamil Nadu Housing Board, in his counter affidavit has submitted that when late.Mr.Munu Adahi took charge as Chairman of the Tamil Nadu Housing Board, he made a representation on 04.02.1992, to the Housing Board stating that, since he was residing at Tambaram, he had difficulty in coming to his office at Nandanam and therefore, requested to allot a rental house to commute to his office. The Board by its resolution, dated 08.02.1993, decided to allot a house in Door No.48A (New No.68), at Santhome High Road, Mylapore, Chennai-4, to the former Chairman, on monthly rental basis and that the same ratified in Government letter dated 08.07.1993.
14. The former Chairman, made a representation dated 21.06.1993, for conversion of the rental house into Hire Purchase and his request was placed in the Board meeting held on 28.07.1993. The Board meeting was presided over by the late.Munu Adhi himself, in the capacity of Chairman of the Board and in resolution No.9/02 dated 28.07.1993, the Board fixed the land price, and the cost of the building. Since the Government alone is the competent authority to pass orders, the proposals were forwarded to the Government on 10.08.1993 for its approval, as per the procedure. The respondent has submitted that the Tamil Nadu Housing Board is not the competent authority to pass orders for conversion of rental house into Hire Purchase. On examination of the proposals, the Government, by its Letter (MS) No.226, Housing and Urban Development Department dated 02.06.1999, rejected the proposals of the Board for conversion of the above said rental house.
15. The respondents have further submitted that the Madras Citizen Progressive Council represented by its Chairperson Mr.Kasturi Radhakrishnan, filed a W.P.No.18760 of 1993, to restrain the Government from giving effect to the abovesaid Board's resolution. On the basis of the Government letter, dated 02.06.1999, the Writ petition was dismissed. The respondents have further submitted that, the Board in its resolution No.11/04 dated 21.07.1997, resolved not to transfer lease-hold rights of the rental allotment to the legalheirs of the tenant, after the demise of the original tenant. Therefore, a show cause notice dated 19.05.2006 was issued to the Writ petitioner under Section 84(2) of the Tamil Nadu Housing Board Act, for which the petitioner submitted an explanation dated 03.06.2008. Thereafter, the rental allotment made in favour of the petitioner's father was cancelled on 13.06.2008 under Section 84 of the Tamil Nadu Housing Board Act 1961. Aggrieved by the same, the petitioner preferred an appeal before the Government and that the same was rejected in G.O.(D) No.236 Housing and Urban Development Department dated 08.07.2008.
16. It is further submitted that the Board's resolution No.9/02 dated 28.07.1993, is only recommendatory in nature and the petitioner has no vested or legal right to compel the Government to seek for such conversion. Moreover, as per the norms of the Board, the leasehold rights of the Board's premises are non-transferable to legalheirs of the original allottee, after his/her death and therefore, the petitioner is in unauthorised occupation of the Board's premises, as per the Board's existing norms. In these circumstances, it is submitted that the request of the petitioner for conversion is not maintainable in law. It is further submitted that the petitioner is well aware of the rejection of the request of his father and the further order made in the year 2005 and he cannot plead ignorance.
17. As transfer of leasehold rights to the legalheirs is not permissible and having regard to the fact that the original allottee expired on 21.06.2005, the petitioner is in unauthorized occupation since then. The respondents have contended that the petitioner has no vested right by stepping into the shoes of his deceased father and seek for conversion. The very purpose for allotting the rental house to his father was to enable him to commute to his office, as he had found it difficult to come every day from Tambaram and it was purely a temporary arrangement. For the above said reasons, the respondents have contended that both the Writ Petitions are not maintainable. There is no illegality or procedural irregularity and hence, prayed for dismissal of the Writ Petitions.
18. Inviting the attention of this Court, to the Board's resolution No 9.02 dated 28.07.1993 Mr.P.Wilson, Learned Additional Advocate General submitted that, what was resolved by the Board was only a decision to recommend the case of the former Chairman for conversion of the rental house to ownership house on Hire Purchase basis and that the said resolution does not confer any statutory or legal right on the petitioner to seek for conversion. According to him, the said resolution or the proposal made to the Government did not fructify into any favourable order to the former Chairman of the Board and therefore, it can never be construed as a promise held out to him. He therefore, submitted that the decision relied on by the learned Senior Counsel is inapposite to the facts of this case.
19. Learned Additional Advocate General further submitted that even though, the request of the petitioner's father was rejected as early as on 02.06.1999, and communicated to him by Board's letter dated 04.08.1999, the said letter of the Board or the rejection made by the Government on 02.06.1999, was not challenged by the former Chairman. However, he made another representation on 24.11.2003, to the Government to approve the Board's resolution, dated 28.07.1993. When the petitioner's father made successive representations on the same cause and when the rejection order, dated 02.06.1999 has reached finality, it is not open to the petitioner to step into the shoes of his father and contend that the rejection letter, dated 02.06.1999 of the Government has been communicated to him only recently i.e., in the year 2006 and therefore, there is cause of action to agitate the same, after so many years.
20. Referring to Section 72 of the Act, the power of the Housing Board, Learned Additional Advocate General submitted that the said section applies only for disposal of land either by lease or sale and it is not applicable to the case of allotment of a rental house or conversion. He further submitted that, the petitioner was never recognised as a tenant under the Housing Board, and therefore, mere collection of rent for his occupation will not confer any right to claim transfer of rights on the basis of a lease which was granted to his father. In support of his contention, he relied on the decision in S.R.Radhdkrishnan v. Neelamegam reported in 2003 (10) SCC 705.
21. According to him, the conditions set out in section 84(1) of the Act, are applicable only, when a person is authorised to occupy any Board's premises and violated any one of the conditions set out thereunder.
22. Inviting the attention of this Court to the explanation given under the Act for the expression "unauthorized occupation", he submitted that he petitioner is an unauthorised occupant of the Board's premises and is liable to be evicted. He further submitted that a notice under Sub Section 2 of Section 84 of the Act, has been duly served in the manner provided for and after considering his explanation, with reference to the records and the policy decision of the Board, not to permit the transfer of occupancy rights house/apartments to the legalheirs of the allottees except in Special and deserving cases, by order dated 13.06.2006, of the Secretary and Executive Officer, Tamil Nadu Housing Board, the petitioner was directed to hand over vacant possession, within 30 days from the date of the order.
23. Referring to the orders passed by this Court in Writ Appeal Nos.516 & 1388 of 2000 and 1346 of 2001 and the order made in the Writ Petition Nos.7854 and 8288 of 2003, learned Additional Advocate General submitted that, a legalheir who is in possession of a house allotted to the original allottee has no locus standi to seek for transfer of occupancy rights of the house/apartments in his favour. He further submitted that as the case of the petitioner does not fall under Special or deserving cases, rejection of his request for conversion is in accordance with the rules and norms prescribed by the Board.
24. Placing reliance on the decision of this Court made in A.Durairaj Vs. The Chairman