V. Lakshmi v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29-2-2008CORAMTHE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P.No.3099 of 2004W.P.M.P.No.2396 of 2007V. Lakshmi...PetitionerVs.1.State of Tamil Nadu,rep.by Commissioner &Secretary to Government,Housing & Urban Development Department,Fort St.George,Chennai - 600 009.2.Tamil Nadu Housing Board,rep.by its Chairman and Managing Director,Anna Salai,Nandanam,Chennai - 600 035.3.Amavasai...RespondentsPrayer:This writ petition is filed under Article 226 ofConstitution of India, praying this Court to issue a writ ofCertiorarified mandamus calling for the records of the firstrespondent in connection with the letter bearing referenceNo.26897/HB.5(1)03-1, dated 22.1.2004 and quash the same and directthe respondents 1 and 2 to restore the allotment made in favour ofpetitioner in 1988 and issue such further or other orders ordirections as this Court deems fit and proper in the facts andcircumstances of the case, award costs.For Petitioner: Mr.V. Prakash,Senior Counselfor Mr.P.ChandrasekaranFor 1st Respondent :Mr.Gopinathan,Addl.Government Pleader https://hcservices.ecourts.gov.in/hcservices/ For 2nd Respondent:Mr.R.GirirajanFor 3rd Respondent:Mr.R.NatarajanO R D E RBy consent of both sides, the writ petition itself was takenup for final disposal.2.Prayer in the writ petition is to quash the order dated22.1.2004 issued by the first respondent and direct the respondents1 and 2 to restore the allotment made in favour of the petitionerin the year 1988.3.The brief facts necessary for disposal of the writpetition are as follows:(a)The Tamil Nadu Housing Board made allotments of plots inVellore neighbourhood Phase-I, Phase-II, Phase-III, Phase-IV andPhase-V by drawal of lots as well as on applications. Some of theplots were allotted on application, which were not found fit forallotment by drawal of lots. In Phase-III, three plots aresituated in S.No.147/2 which were acquired from one KrishnaswamyMudaliar, the combined extent of which is 28 cents. The said plotsare rocky in nature. Therefore, the Housing Board decided not toallot the said plots by drawal of lots and resorted to lease-cum-sale of the said plots and one of the said three plot is plotbearing No.508C.(b)Petitioner applied to the Tamil Nadu Housing Board forallotment of the said plot in the year 1988 and the firstrespondent by G.O.Ms.No.1373 Housing and Urban DevelopmentDepartment dated 17.10.1998 allotted the plot to the petitioner,having an area of 832 sq.mtrs. Thereafter a regular allotmentorder was issued by the third respondent on 29.11.1988 based on thefilled-in application submitted by the petitioner.(c)The petitioner made full payment towards cost of the saidplot, which was approximately Rs.1,11,000/-. According to thepetitioner, the Housing Board permitted the petitioner to erect afence and compound wall around the plot and towards that petitionerspent Rs.25,000/-. In spite of that petitioner could not enjoy theplot on account of the failure of the Housing Board to evict thethird respondent herein.(d)The third respondent filed O.S.No.28 of 1992 on the fileof the District Munsif Court, Vellore, against the petitioner'shusband viz., A.Venkatesan for permanent injunction restraining himfrom interfering with his possession and enjoyment of the suitproperty, which includes the property allotted to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ On 10.7.1997, the said suit was dismissed. The appeal filed inA.S.No.62 of 1997 on the file of the District Court, Vellore wasalso dismissed on 29.11.2001.(e)The third respondent claimed that the land comprised inPlot NO.508C is a poromboke land, where she had been residing forseveral years. He filed W.P.No.1642 of 1992 before this Court andchallenged the allotment made in favour of the petitioner. Pendingdisposal of the writ petition an injunction not to interfere withthe possession was granted by this Court on 18.8.1997. The saidwrit petition was dismissed as withdrawn giving liberty to thepetitioner to move the appropriate authority. (f)Thereafter the third respondent filed O.S.No.899 of 1997for permanent injunction restraining the defendant from interferingwith his possession including the plot allotted to the petitionerand for direction to the first and second respondents herein tocancel the allotment by way of mandatory injunction. Thepetitioner herein was arrayed as third respondent. He also filedI.A.No.1240 of 1997 for interim injunction. On 19.12.1997 aninterim injunction as prayed for was granted. Subsequently thesaid suit was withdrawn by the third respondent with liberty tofile a fresh suit.(g)Petitioner filed O.S.No.1120 of 2000 against the TamilNadu Housing Board and the Executive Engineer Housing Unit,Sathuvachery, Vellore-9, for issuing a mandatory injunction toremove the encroachment made by the third respondent and the saidsuit is said to be pending. When the suit was pending, petitionerreceived the impugned order from the Tamil Nadu Housing Board,dated 9.10.2000 cancelling the allotment of plot made in herfavour.(h)The said order of cancellation was challenged by thepetitioner in W.P.No.17863 of 2000 and this Court directed thepetitioner to invoke the remedy under section 86 of the Tamil NaduHousing Board Act, before the Government by filing appeal.Petitioner filed appeal before the first respondent on 7.11.2000.When the appeal was pending the said plot was allotted to the thirdrespondent through G.O(2D)No.122 dated 4.6.2003.(i)The said order was challenged by the petitioner inW.P.No.18626 of 2003. This Court by order dated 21.11.2003, setaside the allotment in favour of the third respondent and directedthe petitioner to submit a copy of the appeal dated 7.11.2000 tothe first respondent within one week and the first respondent wasdirected to pass final orders on the appeal, giving opportunity ofhearing to the petitioner as well as the third respondent.Petitioner submitted a representation on 15.12.2003 and one morecopy of the appeal to the first respondent on 7.1.2004. The saidappeal was rejected by the impugned order dated 22.1.2004 statingthat the petitioner should not own a house in any corporation,special grade and 'A' grade municipality or in any capital town inthe country either in his/her name or in the name of spouse or https://hcservices.ecourts.gov.in/hcservices/ minor children. The said order is challenged by the petitioner onthe ground that similar notices issued for cancellation ofallotment were withdrawn and the impugned order is passed only tofavour the third respondent to file number of civil suits and lost.4.Second respondent filed counter affidavit by narratingthe suits and writ petitions filed by the petitioner as well as thethird respondent and also stated that the plot was allotted to thepetitioner under Government discretionary quota on 17.10.1988 bythe Government. The petitioner at the time of allotment andsubsequently, suppressed the fact of allotment of plot No.919 inVellore Neighbourhood Scheme Phase-II in favour of petitioner'shusband viz., A.Venkatesan. Thus, the petitioner obtained doubleallotment for her family and the allotment made in favour of thepetitioner being the last one, the same was cancelled. In theapplication form submitted for allotment the petitioner has given adifferent residential address and in the sale deed, lease-cum-saledeed and sale agreement the petitioner's residential address isgiven as plot NO.919, which shows that they are living together.As per the undertaking given in the application form in favour ofthe petitioner's husband, if any allotment is received bysuppression of facts, the same is liable to be cancelled, thuspetitioner's allotment was cancelled.5.In the counter affidavit filed by the third respondent itis stated that the petitioner suppressed the fact of having anallotment in favour of her husband at the time of submission ofapplication and the petitioner also gave a declaration empoweringthe Board to cancel the allotment, if any suppression is foundsubsequently. The plot in favour of petitioner's husband wasallotted in the year 1980 and the sale deed was executed in hisfavour on 20.10.1989. The third respondent is given allotment ofthe said plot after cancelling the allotment made to the petitionerthrough G.O.(2D)No.122, dated 4.6.2003, pending disposal of theappeal preferred by the petitioner. This Court directed the firstrespondent to dispose of the appeal after affording opportunity tothe petitioner and the third respondent and by order dated21.11.2003 made in W.P.No.18626 of 2003, this Court made it clearthat the allotment made in favour of the petitioner or in favour ofthird respondent shall be subject to the orders that may be passedby the first respondent in the said appeal. It is also pointed outin the counter affidavit that the Government issued G.O.Ms.No.2063Housing and Urban Development Department dated 9.11.1979 forallotment of plots by the Housing Board, wherein it is stated thatthe applicant should not own a house in any Corporation, Specialgrade and 'A' grade municipality or in any capital town in thecountry either in his/her name or in the name of spouse or minorchildren and in this case, petitioner's husband having beenallotted a plot already as stated supra which was suppressed by the https://hcservices.ecourts.gov.in/hcservices/ petitioner while submitting application and all time subsequentlygot an allotment and the same being noticed by the Housing Board,notice was issued to the petitioner and thereafter it wascancelled. It is further stated in the counter affidavit that evennow petitioner is not denying the fact of allotment of a plot infavour of her husband prior to the allotment of plot to her. Hencethe petitioner is disqualified from submitting application forallotment and therefore there is no illegality in cancelling theallotment order by the Tamil Nadu Housing Board.6.The learned Senior Counsel appearing for the petitionersubmitted that the Government having allotted the land, the HousingBoard has no jurisdiction to cancel the same and the cancellationalso cannot be made at the instance of the third respondent onwhose objection only the second respondent initiated cancellationproceeding and ultimately cancelled the allotment and the same isnow allotted to the third respondent. The learned Senior Counselfurther submits that allotment made in the year 1988 is cancelledin the year 2000 and the respondents are estopped from cancellingthe allotment after all these years.7.The learned counsel for the second respondent on theother hand submitted that the petitioner has given a declaration inthe application that if any suppression is found it is open to theBoard to cancel the allotment. Petitioner's husband having beenallotted a plot already, which is not disclosed by the petitionerand the same having been found by the Housing Board, the HousingBoard exercised its right to cancel the allotment, which wasobtained by suppression of fact. 8.The learned counsel appearing for the third respondentalso argued on the above line supporting the arguments of thesecond respondent and prayed for dismissal of the writ petition.9.I have considered the rival submissions made by thelearned counsel for the petitioner as well as respectiverespondents.10.Petitioner submitted an application to the Tamil NaduHousing Board on 24.5.1988 without disclosing the allotment of aplot in favour of her husband and requested the Managing Directorto forward the application to the Government with necessaryrecommendation. The Executive Engineer, Vellore Housing Unit,through letter dated 25.5.1988 addressed to the Chairman andManaging Director TNHB stated that plot No.508 A, B & C are vacantand the said plots may be allotted to the genuine persons forfetching revenue to the Board. The tentative cost of the plot wasfixed as Rs.23,000/- per ground. The Chairman and ManagingDirector, Tamil Nadu Housing Board, through letter dated 18.8.1988 https://hcservices.ecourts.gov.in/hcservices/ addressed to the Secretary to Government, Housing and UrbanDevelopment Department, Chennai-9, stated that the above plotsviz., 508A, B & C may be allotted to eligible persons. Theapplication submitted by the petitioner was also enclosed forconsideration of allotment. Thereafter the Government issuedG.O.Ms.No.1377 Housing and Urban Development Department dated17.10.1988, stating that the Managing Director has recommended thatthe said plot viz., Plot No.508C may be allotted to the petitionerand consequently the plot was allotted to the petitioner, subjectto usual terms and conditions prescribed by the Tamil Nadu HousingBoard, in its allotment rules. The Chairman and Managing Director,TNHB was requested to take action as ordered in paragraph 2 i.e.,as per allotment rules.11.In the file produced by the Tamil Nadu Housing Board, theallotment made in favour of the petitioner's husband viz.,A.Venkatesan based on his application dated 10.12.1979 is alsoavailable. In the said application submitted by the petitioner'shusband it is stated that no other plot is available in the name ofhis wife viz. Dhanalakshmi. On the said basis the petitioner'shusband was allotted plot No.919 of Phase-II. A sale deed was alsoexecuted in favour of petitioner's husband on 19.10.1989. Thus itis beyond doubt that the petitioner's husband is having a plot,already allotted by the TNHB.12.In the application submitted by the petitioner beforeTNHB on 24.5.1988, admittedly the petitioner has not disclosed theearlier allotment of plot made in favour of her husband. Thereforethere is suppression of fact on the part of the petitioner and thesame having not been disclosed, the petitioner's application wasforwarded to the Government by the Managing Director of TNHB,pursuant to which plot was allotted to the petitioner subject tothe terms and conditions prescribed by the TNHB in its allotmentrules.13.The allotment rules issued by the Government clearlystates that a person seeking allotment of a plot of the Tamil NaduHousing Board should not own a house in any Corporation, specialgrade and 'A' grade municipality or in any capital town in thecountry either in his/her name or in the name of spouse or minorchildren. The same is made clear in G.O.Ms.No.2063 Housing andUrban Development Department dated 9.11.1979. Thus the petitioneris ineligible as per the rules of allotment and her applicationhaving been submitted by suppression of fact, the allotment made infavour of the petitioner will not confer any right to claim thatshe should be permitted to retain the plot.14.Further petitioner has signed a declaration form asrequired in the allotment order that if any suppression of fact is https://hcservices.ecourts.gov.in/hcservices/ found by the TNHB, the Board is entitled to cancel the allotmentand the said declaration form is also signed by the petitioner on1.12.1988. The said declaration given by the petitioner reads asfollows:"I declare that as on today, I or my wifeor husband or any of my minor or dependant childdoes not own a house or house site or flat, andhas also not been allotted any other house orhouse site or flat and remaining to take over.I am aware that if at any time, it is foundthat this declaration given by me is incorrector false, the Chairman, Tamil Nadu Housing Boardmay cancel the allotment made in my favour andresume possession of the site/building/flat andforfeit part or whole of the amount paid by meincluding the Earnest Money Deposit."15.In the light of the above uncontroverted facts and thedeclaration given as stated supra, the petitioner has no right toapply for allotment and obtaining allotment by suppression of factis liable to be cancelled. Accordingly the cancellation made bythe second respondent and confirmed by the first respondent isperfectly in order.16.In support of the cancellation the learned counsel forthe second respondent cited the following decisions of the SupremeCourt.(i)In (1995) 5 SCC 313 (Chandigarh Housing Board v. AvtarSingh and Another) and in paragraph 4 the Supreme Court held thus,"4. Having considered the facts andcircumstances, we find that when the regulationsprohibit allotment to wife/husband or dependantsand if any one has got a house or a flat, bynecessary implication both or all, except oneamong the members of the unit, are ineligible tomake separate applications. There need not beany specific rule prohibiting making separateapplication in that behalf. So long as thecouple are tied by marriage bond, both are boundby the regulations for allotment. Therefore, thecancellation per se is not illegal. The questionthen is whether the entire amount should beforfeited. Obviously, the power of forfeiturewas intended to prevent fraud and malpractice inallotment and in case of positive finding inthat behalf, courts would be loathe to interferewith the exercise of the power under Regulation6(2). https://hcservices.ecourts.gov.in/hcservices/ (ii)In AIR 2000 SC 2616 = (2000) 6 SCC 415 (ChandigarhHousing Board v. Narinder Kaur Makol) in paragraph 12 and 13 it isheld as follows:"12. In our opinion, in view of theadmitted fact that there is a residential flaton the second and third floors of the groundfloor commercial plot, it must necessarily beheld that the husband of the respondent owned aresidential house within the territory inquestion and that therefore the respondent (wifeof the first allottee) is not eligible forallotment of another residential plot from thesaid authority. It must be realised that theseplots are allotted on concessional basis to theallottees by the public authority and therelevant regulations must therefore beinterpreted in such a manner as to save ( sicserve) their real purpose so that the plots areavailable, as far as possible, to the largestnumber of persons, and for preventing the samefamily members, husband or wife or dependants,as the case may be, from getting more than oneplot or house, for the same purpose. We are ofthe view that the words “residential house” inRegulation 6(1) must be treated as including aflat constructed above the commercial flat onthe ground floor. This will be so even iforiginally the plot was allotted for commercialpurposes, if incidentally construction ofresidential flat above the ground floorcommercial plot is permitted as per the plans.In other words, even though the plot is allottedas a commercial plot, if it is permissible tobuild a residential flat above the commercialplot, and is so constructed, then such aresidential flat will come within theprohibition in Regulation 6(1). 13. We, are therefore, of the view that thedeclaration made by the respondent that herhusband did not own a residential house was notcorrect. It may be a bona fide statement by her,but it does not in our opinion reflect the factscorrectly. The cancellation of the allotment infavour of the respondent by the authorities on15-12-1994 was therefore, justified." (iii) The respondents are justified in relying on theundertaking given by the petitioner for cancelling the allotment asheld by the Supreme Court in (2007) 4 SCC 410 (Shiv Kant Yadav v. https://hcservices.ecourts.gov.in/hcservices/ Indian Oil Corporation and others) in paragraphs 14 to 16 theSupreme Court held thus,"14. There was a requirement to disclosethe true and correct fact which does not appearto have been done. 15. The undertaking reads as follows: “That I am fully aware that Indian OilCorporation (name of the oil company) underits policy will not appoint me as theirdealer/ distributor, if I am employed. Ishall have to resign from the service andproduce proof of acceptance of myresignation by my employer to Indian OilCorporation Ltd. (name of the oil company)before issuance of letter of appointmentfor the dealership/distributorship. That if any information/ declarationgiven by me in my application or in anydocument submitted by me in support of myapplication for the award of SKO/LDOdealership/distributorship or in thisundertaking shall be found to be untrue orincorrect or false Indian Oil Corporation(name of the oil company) would be withinits rights to withdraw the letter ofintent/terminate the dealership/distributorship (if already appointed) andthat, I would have no claim, whatsoever,against Indian Oil Corporation (nam e ofthe oil company) for such withdrawal/termination.” 16. In view of the undertaking that if anyfactual misstatement or declaration is made thatpermits cancellation of the allotment. The orderof the High Court does not suffer from anyinfirmity to warrant interference. The appeal isdismissed with no order as to costs." 17.The unreported judgment of this Court cited by thelearned counsel for the petitioner in W.P.No.7836 of 1994 dated26.4.2001 (K.O.Parasuram v. Allottee Service Manager, VelloreHousing Unit, TNHB) will not help the case of the petitioner in anymanner as in that case, the learned Judge was considering the casewhere the petitioner was owning a farm land with a small farmhouse, and condition No.12 of the conditions was also withdrawn bythe Government through G.O.Ms.No.29 Housing and Urban DevelopmentDepartment, dated 29.1.2001. Taking note of the said factual https://hcservices.ecourts.gov.in/hcservices/ aspect, the learned Judge permitted the petitioner to makerepresentation to the Government and the Government was directed topass appropriate orders in the light of the existing allotmentconditions. Hence the said case is clearly distinguishable.18.Here in this case, the cancellation order was passed on9.10.2000 and the said plot is allotted to the third respondent,who was not owning any plot in his name or in the name of anymember of his family.19.In the light of the above cited Supreme Court Judgmentsand having regard to the declaration submitted by the petitionerand admittedly petitioner's husband having been allotted a plotalready, the said allotment made in favour of the petitioner is notin order and therefore the cancellation of the allotment is legaland no interference is called for.The writ petition is dismissed. No costs. Connectedmiscellaneous petitions are also dismissed.VrSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Commissioner & Secretary to Government,Housing & Urban Development Department,Fort St.George, Chennai - 600 009.2.The Chairman and Managing Director,Tamil Nadu Housing Board,Anna Salai, Nandanam, Chennai - 600 035.•2 ccs to Mr. R. Natarajan, Advocate SR No. 11229•1 cc to Mr. P. Chandrasekaran, Advocate SR No. 11352•1 cc to Mr. R. Girirajan, Advocate SR no. 11535 VSV(CO)SR/4.3.2008 Order inW.P.No.3099 of 2004 & connected MP.