Adhiyamaan Educational &Research Institution v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.10.2009CORAMTHE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.2334/1999Adhiyamaan Educational &Research Institutionrep. by its Chairperson,C-2, M.I.G. Block,Foreshore Estate,Chennai – 600 028. ... Petitioner Vs.1.The State of Tamil Nadu, rep. by its Secretary to Government, Housing and Urban Development Department, Fort St.George, Chennai – 600 009.2.Tamil Nadu Housing Board, rep. by its Secretary 331, Anna Salai, Nandanam, Chennai – 600 035. ... RespondentsPRAYER: Writ Petition filed under Article 226 of Constitution ofIndia praying to issue Writ of Certiorarified Mandamus to call forthe records of the 1st respondent in its order No.30671/Ve.Va/5(1)/98-1 dated 06.11.1998, quash the same and consequently direct therespondents to allot the land at Temple Land, Hosur NeighbourhoodScheme Phase IV to the petitioner.For Petitioner :Mr.R.ParthibanFor Respondents:Mr.G.Desinghu for R1 (Spl. Government Pleader): Mr.A.Vijayakumar for R2 (TNHB)ORDERThe writ petitioner is a Trust, registered under the provisionsof Indian Trust Act. The prayer in the writ petition is to quash theorder passed by the first respondent dated 06.11.1998 and to directthe respondents to allot the land to the petitioner's trust in HosurNeighbourhood Scheme Phase IV. 2. The facts leading to the filing of the writ petition are asfollows: https://hcservices.ecourts.gov.in/hcservices/ The petitioner submitted an application to the second respondentfor allotment of a school site in the lay out promoted by the TamilNadu Housing Board at Hosur. The request made by the petitioner wasfavourably considered and by an order dated 25.10.1988, thepetitioner was allotted a school site measuring 11 grounds and 2247sq.ft. This provisional allotment forwarded a regular allotment orderdated 28.11.1988, in the said regular allotment order the cost of theland, tentative cost of the building, the initial deposit payable forthe plot and the monthly instalments for 10 years for the land costwere mentioned. As per the terms and conditions of the allotment thetentative building cost should be paid in one lump sum within onemonth from the date of allotment. Since the petitioner failed to paythe building cost as per the terms of allotment within the stipulatedtime, the show cause notice dated 13.04.1989 was issued calling uponthe petitioner to explain as to why that allotment should not becancelled. This show cause notice was also issued in respect ofanother property which was allotted to the petitioner in Krishnagiri.However, the present writ petition relates only to the land andbuilding allotted at Hosur. 3. The petitioner submitted that their reply on 15.04.1989 andrequested time for payment. Subsequently by an order dated05.05.1989, the allotment was cancelled invoking the powers underSection 84 of the Tamil Nadu State Housing Board Act. The petitionerchallenged the said order of cancellation before this Court by filingwrit petition No.6637/1989 the said writ petition was dismissed on15.06.1989 after a lapse of more than 1 ½ years. The petitionersubmitted a representation to the Government on 28.02.1991 requestingthe re-allotment of school site at Hosur. Since the request was notconsidered, the petitioner filed the writ petition No.10470/1998before this Court and this Court by order dated 24.07.1998 directedthe Government to consider the petitioner's request. The Governmentby order dated 06.11.1998 rejected the request. This order ofrejection is impugned in this writ petition.4. Mr.R.Parthiban learned counsel appearing for the petitionerassailed the correctness of the impugned order on the ground that itis a non-speaking order as no reason have been given for rejection,that apart the learned counsel would submit that the petitioner hasstarted a school near to the said land and if the land is notallotted in favour of the petitioner, it would cause grave prejudiceas there are a large number of school students studing in theinstitution. Though in the affidavit filed in support of the writpetition, an allegation of malafide has been raised, the same has notbeen placed for consideration by the petitioner and hence has nottaken. On the above grounds the learned counsel for the petitionerwould submit that the impugned order of rejection is not sustainableand deserves to be set aside. 5. Mr.A.Vijayakumar learned counsel appearing for the Housing https://hcservices.ecourts.gov.in/hcservices/ Board by relying upon the counter affidavit filed would contend thatthe allotment made in favour of the petitioner had been cancelled byinvoking in powers under Section 84 of the Act, by an order dated05.05.1989, and the writ petition filed challenging the said order inW.P.No.6637 of 1989 was dismissed as early as on 15.06.1989 and atthis stage, the question of re-allotment or reconsideration does notarise. Learned counsel would further submit that the cancellation ofthe allotment was done after issuance of show cause notice and afterconsidering the reply submitted by the petitioner. Therefore theorder of cancellation having become final, there is no vested rightwith the petitioner seeking for such re-allotment. The learnedcounsel would further submit that the Government have issued ordersregarding the allotment of school site by changing the pricing andother conditions of allotments vide G.O.Ms.No.622 dated 26.09.1994and as per the guidelines, the site has to be disposed of by callingfor tender-cum- auction and all eligible Educational Organisationincluding the petitioner can participate in such tender-cum-auctionsale. On the above grounds, the learned counsel prayed for dismissalof the writ petition. 6. Mr.G.Desinghu learned Special Government Pleader appearingfor the first respondent, by placing reliance upon on the counteraffidavit filed would contend that the petitioner has no right evenfor consideration as observed by this Court in earlier writ petitionand more particularly when the writ petition filed seeking to quashthe cancellation order was dismissed by this Court on 15.06.1989.Further, it is submitted that, since the petitioner failed to pay themonthly instalment, the allotment was rightly cancelled after issuingshow cause notice. Further the learned counsel would also contendthat the allegation of malafide have been denied in the counteraffidavit and the reasons for cancellation is borne out by recordsand as stated in the order dated 05.05.1989. 7. It is further submitted that the board is an autonomous bodyand borrowing money from various financial organisations and fromPublic by way of fixed deposit and the board is repaying these loanswith interest and therefore the board would suffer huge revenue lossif the developed lands are not allotted and bearing this mind, theGovernment order in G.O.Ms.No.622, Housing and Urban DevelopmentDepartment dated 26.09.1994 has been issued. Therefore it issubmitted that, it is open to the petitioner to participate in thetender-cum-auction and seek to purchase the land. A reply affidavithas been filed by the petitioner stating that the guidelinesstipulated in G.O.Ms.No.622 dated 26.09.1994 will not apply to thecase of hand and the rules which were enforce at the time ofallotment during 1988 alone would prevail.8. I have carefully considered the submissions of learnedcounsel appearing for the parties and perused the materials availableon record. https://hcservices.ecourts.gov.in/hcservices/

9. It is not in dispute that the order of allotment issued infavour of the petitioner was cancelled by order dated 05.05.1989,after issuing a show cause notice to the petitioner and following theprocedure under section 84 of the Act. This order was questioned bythe petitioner before this Court and the said writ petition inW.P.No.6637/1989 was also dismissed on 15.06.1989. Thus, it is to benoted that the order of cancellation had attained finality. 10. As rightly pointed out by the learned counsel appearing forthe respondents on after 05.05.1989, no right accrues in favour ofthe petitioner and more particularly when such order was notinterfered by this Court, when the writ petition which was filed bythe petitioner was dismissed. Thus, it is to be noted that thepetitioner shall be placed on the same pedestal as any other thirdparty who desires to purchase the school site from the respondent'sboard. In the absence of any vested right in the petitioner, thequestion of re-consideration or re-allotment of the allotment whichwas already cancelled does not arise. Therefore on after 05.05.1989the allotment of the said property has to be made only as per therules of allotment which are in force as on 1989.11. The Hon'ble Supreme Court in State of Tamil NaduVs.M/s.Hindstone, reported in AIR 1981 SC Page 711 has held that therule in force on the date of disposal of the application shall applyeven if there is a long delay since the making of the application. 12. In the instant case after the cancellation of the allotmentof the property vests with the board, and the board shall dispose ofthe same only in accordance with the rule or guidelines which areprevalent and in force on the date of such further allotment.Therefore the contention raised by the petitioner that the guidelineswhich were in existence at the time of their allotment i.e., during1988 alone should be followed is not tenable and an in-correctinterpretation of the settled legal principle. 13. Further in the counter affidavit filed by the respondents,it has been pointed out that the Government has directed that sucheducational sites shall be disposed of tender cum auction and it isopen to the petitioner also to participate in such tender. Hence, Ifind that there is no illegality in the order passed by therespondent rejecting the request for re-allotment after the originalallotment was cancelled and such order of cancellation was upheld bythis Court, when the writ petition was dismissed on 15.06.1989. Forthe above reasons, there are no merits in the writ petition andaccordingly the same is dismissed. No costs. pbn Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Government, Housing and Urban Development Department, Fort St.George, Chennai – 600 009.2. The Secretary Tamil Nadu Housing Board, 331, Anna Salai, Nandanam, Chennai – 600 035.1CC to Mr.A.Vijayakumar, Advocate (SR.56298)1CC to Government Pleader (SR.56519)Order inW.P.No.2334/1999VSV (CO)SS (30.10.2009)