Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorari, to call for the entire records of the letter No.R.'Nil', dated 15.09.2007 on the file of the second respondent and quash the same.
For Petitioners : Mr.V.Bhiman for M/s.Sampath Kumar Associates For Respondents : Mr.A.Vijayakumar for TNHB C O M M O N O R D E R The petitioners were allottees of house under the Salem Housing Board Scheme at Annadhanapatti. Pursuant to the allotment, the petitioners had entered into a Lease -cum-Sale agreement on various dates with the respondent Tamil Nadu Housing Board. They had paid the entire amount towards deposit and were also paying monthly instalments. However, the petitioners were issued with a demand notice by the respondent Board asking them to come and check their accounts before obtaining the sale deed and also demanded certain amounts towards Tentative Cost, Regular interest, Non-capitalisation, Interest, Difference in Land Cost and corner and further interest. The petitioners have come forward to challenge the said demand notice.
2. The contention of the petitioners was that the demand is without any basis and contrary to Para 17 of the Lease-cum-Sale Agreement. They had also stated that the Lease-cum-Sale Agreement is a concluded contract and any demand made after a period of seven years in excess of the amounts agreed thereto is clearly illegal. It was also stated that demand of Capitalization Charges is also illegal.
3. Notice was ordered on these writ petitions. In some of the writ petitioners, the petitioners had the benefit of interim order. Subsequently, the matters were posted for further orders.
4. Heard Mr.V.Bhiman, learned counsel appearing for the petitioners and Mr.A.Vijaykumar, learned counsel appearing for the Tamil Nadu Housing Board and perused the records.
5. The contention raised by the petitioners that Para 17 of the Lease-cum-Sale Agreement had been violated cannot be accepted because, under Para 19, it has been clearly stated that because of uncertainty of land acquisition proceedings if any compensation amounts were directed to be paid more than what has been originally paid, then the allottees will have to make good the difference in compensation. The question of fixing seven year frame work does not arise, as there is no certainty about the conclusion of land acquisition proceedings. Further, the petitioners cannot rely upon paragraph 17 and the entire agreement will have to be taken as a whole. The arrangement between the petitioners and the respondent Board is a contractual arrangement and they cannot by filing a writ petition seek to challenge the very terms of agreement which entitles them to get a allotment in their favour.
6. The learned counsel Mr.Vijaykumar appearing for the Tamil Nadu Housing Board brought to the notice of this Court a judgment of the Supreme Court in Shimla Development Authority v. Asha Rani reported in AIR 1996 SC 1591, wherein the Supreme Court in paragraphs 3 and 4 held as follows:-
"3. ...The admitted position, as stated earlier, is that the land of a private owner was acquired under the Land Acquisition Act for the Self Finance Scheme. As a matter of fact, when scheme is for construction and allotment of the houses to the allottees is initiated, allottee is bound to bear the cost of the value determined by the civil court under Section 26 of the Land Acquisition Act by award and decree or thereafter if an appeal is filed and further increase is made under
Section 54 of the Act. In this case, admittedly, on reference under Section 18, the Court had determined the compensation by award and decree made under Section 26 on April 30, 1993. Therefore, the earlier demand was required to be modified, consistent with the escalation in the cost of the value of the land as a result of determination of the compensation by the civil Court.
4. ... As held earlier, the allottee is to bear the burden of not only the escalation of the value of the land when the Court enhanced the compensation under provisions of the Land Acquisition Act at various stages. Otherwise, who would pay the escalation cost value of the land etc. the appellant is not a private builder for profit."
This decision of the Supreme Court answers the first objection raised by the petitioners.
7. With reference to the capitalization, it must be noted that the very same issue also came to be answered by the Supreme Court with reference to the very same Board in Chairman and Managing Director, Tamil Nadu Housing Board and another v. S.Raghavan and others reported in CDJ 2008 SC 1538. In that case, the Supreme Court dealt with various orders passed by this Court with reference to the Ellisnagar Scheme floated by the respondent and in order to reconcile the orders passed by this Court, the Supreme Court came out with a workable solution. In paragraph 8 it was observed as follows:
"8. We have carefully considered the contention regarding capitalization. We find that on the peculiar facts of these cases, the High Court has directed that the Capitalization should be done only from the date when the flat/house was made ready for occupation till date of allotment, instead of from the cut off date. On the facts and circumstances of the Ellisnagar scheme, it may not be necessary to modify the direction relating to the manner of calculation of capitalization charges. As the capitalization directed by the High Court is with reference to the special facts of the scheme and its implementation, the various orders of High Court passed from time to time in various litigations, and the Lok Adalat negotiations and broad understandings, the said direction regarding the manner of calculating capitalization charges, will not be a precedent for any other scheme where the Board has adopted or proposes to adopt the standard method of capitalization. The interest payable by the allottees on the capitalization amount shall however be with effect from the date of GOM No.63, dated 2.2.2001 and not 21.5.2004."
In the light of the above, the second contention also fails.
8. Therefore, there is no case made out to entertain the writ petitions and they are liable to dismissed. It must be noted that what has been prescribed in the Lease-cum-Sale agreement is only tentative cost and now that the final cost has been indicated in the Annexure to the demand notice. It is for the petitioners to work out their remedies in the manner known to law.
9. Accordingly, all the writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
svki To
1.The Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai 600 035.
2.The Executive Engineer and Administrative Officer, Salem Housing Unit, Tamilnadu Housing Board, Ayyam Thirumaaligai Road, Salem 8