Executive Engineer, Special Division No. 3 and Executive Engineer, Sites and Services Division II, Tamil Nadu State Housing Board vs A. Krishnasamy

R. Mahadevan, J.—These Writ Appeals have been filed by the Tamil Nadu State Housing Board against the common orders passed by the

learned Single Judge dated 03.12.2009 in W.P. Nos. 21833 of 2000 and 14065 of 2001. In W.P. No. 21833 of 2000, the respondent had

challenged the proposed public auction of commercial plot PC. No. 51 in Arumbakkam Scheme in Special Division 3, in Tamil Nadu Housing

Board, Anna Nagar, Chennai 600 040 published in Dhinathanthi dated 26.11.2000 and for a direction to direct the Housing Board to handover

the possession and such further orders for execution of sale of the said plot in his favour.

In W.P No 14065 of 2001, the respondent had challenged the proceedings of the first appellant in Letter No. B1/11338/86, dated 17.12.2000

and for a direction to the appellants to proceed with the sale of Plot PC. No. 51 in Arumbakkam Scheme to the respondent herein on deposit of

entire balance sale consideration within the time as may be specified by the Hon''ble Court.

It is the case of the respondent/writ petitioner that his offer of Rs. 1,501/- per sq.m. to purchase the commercial plot PC. No. 51 was accepted

by the third appellant by order dated 30.12.1986 and subsequent to extension of time by the Government, he had deposited Rs. 2,00,759/- on

27.07.1990 which was fixed as total cost. After the deposit, the respondent never received any allotment order, or even communication for

execution of lease cum sale agreement, despite his willingness to pay interest for the belated payment of initial deposit. His request for the allotment

letter and handing over possession of the Plot did not receive any favorable reply and in the meantime, the respondent came to know that the Plot

was encroached by third parties, who had filed a Suit in O.S. No. 4638 of 1991 on the file of the City Civil Court, Chennai. Since the appellants

were not in a position either to give a regular allotment order or to handover vacant possession, the respondent again sent letters to the appellants

to evict the encroachers and handover the possession of the plot.

According to the respondent, the only reply he received was a letter dated 17.06.1996 issued by the Executive Engineer, Sites and Services

Division-II, stating that since the relevant files relating to prime commercial Plot No. 51 were handed over to the legal advisor, they were not in a

position to hand over possession of the Plot. Later, the Suit was dismissed in December 1996 and despite the same, there was no communication

regarding the handing over the possession of the Plot. When action was taken by the Executive Engineer, Special Division-III, inviting applications

for public auction for Plot No. 51 to be held on 27.12.2000 at 10.00 a.m., the respondent/writ petitioner filed the Writ Petition in W.P No 21833

of 2000 and obtained interim stay in W.P.M.P. No. 31656 of 2000.

The respondent filed W.P. No. 14065 of 2001 against the cancellation order dated 17.12.2000 since the same was handed over in the court on

19.07.2001 during the hearing of the W.P. No. 21833 of 2000. According to the respondent, the order dated 17.12.2000 seems to have been

passed claiming that the respondent did not come forward to execute the lease cum sale agreement and not paid the installments as per the

allotment order when no such order was received by him. Further, the third parties had also filed Writ Petitions seeking a direction to allot the Plot

to them and the same were dismissed by this Hon''ble Court. The Writ Appeal preferred by the third parties were also dismissed and therefore

during pendency of the litigation, the appellants were not in a position to perform their obligation and the allotment order dated 23.07.1991 was

never served on the respondent and therefore contended that it is not for the appellants to cancel the allotment without issuing a show cause notice.

The above arguments were resisted by the appellants contending that the respondent failed to make payments as per clause 1 of the allotment

order dated 23.07.1991 and payments have to be made irrespective of the fact that possession was handed over or not. The appellants further

contended that it was not necessary to issue any notice as the cancellation was automation upon failure to deposit the initial amount, within 15 days

from the date of acceptance of the offer. The appellants further contended that as per clause 9 of the allotment order the possession can be handed

over only if lease cum sale agreement was executed by the respondent and since he had failed to discharge his obligations as per the allotment

order, he is not entitled to any relief.

In order to ascertain as to whether the allotment order dated 23.07.1991 and show cause notice dated 21.03.1994 were served, the learned

Single Judge called for the records and after perusal, allowed the writ petitions holding that neither the allotment order dated 23.07.1991 nor the

show cause notice dated 21.03.1994 was served on the writ petitioner, and that, because of the pendency of the Civil Suit and Writ Petitions, the

appellants were not in a position to hand over possession of the Plot to the petitioner. The learned Single Judge further held that if the appellants

intended to cancel the allotment, they could have done so between 1991 and 2000, and therefore accepted the submission of the respondent that

address has been changed in the proceedings dated 17.12.2000 to overcome their shortfall. The learned Single Judge passed a detailed order

allowing the Writ Petitions setting aside both the impugned proceedings thereon and directed the respondent to pay interest from 30.12.1986 and

directed the appellant to issue an order of allotment, re-scheduling the payment calculating with interest permissible under law. Aggrieved by the

said order the present writ appeals have been filed.

The learned counsel for the appellants argued that as per the allotment order, it was the duty of the respondent to pay the installments even if

possession was not handed over. The learned counsel contended that the allotment letter and the show cause notice were issued before

cancellation, which was for non-deposit of 25%, and that the respondent has not even paid the revocation fee. Further, the counsel vehemently

contended that the respondent never came forward to execute the lease cum sale agreement and therefore was not entitled to seek possession.

According to him the public auction was being held pursuant to the orders in W.P. No. 1517 of 2000 by this Hon''ble Court and therefore he

assailed the common order of the learned Single Judge.

Per contra, the learned counsel for the respondent contended that neither the allotment letter nor the show cause notice was served on him. He

further contended that the appellant had purposely not served the cancellation order dated 17.12.2000 despite having his correct address. In fact

the respondent has sent communications demanding allotment order and possession and none of those were considered and no reply was received

regarding the same. According to the learned counsel for the respondent, the orders were passed by the learned Single Judge after perusing the

file, and therefore does not warrant any interference. The learned counsel further pleaded that the respondent is willing to pay the offered amount

with interest and the respondent has filed an affidavit to that effect.

We have considered the rival contentions. The original file relating to Plot in PC No. 51, Arumbakkam Scheme was called for and produced

before us and we perused the same.

Upon perusal of the file, it is found that there is no proof for service of the allotment order dated 23.07.1991 and show cause notice dated

21.03.1994. Nevertheless, the appellants themselves have not made any plea in the appeal claiming that the allotment order and the show cause

notice were served on the respondent. When the allotment order itself is not served, the appellants cannot expect the respondent to commence

payment of the installments. Further, only after the allotment order is communicated, the Lease cum Sale Agreement can be executed by both the

parties. The learned Single Judge rightly observed that from 1991 to 2000, a dispute between third parties and the appellants were pending, and

that appellants were not in physical possession of the Plot, and they were not in a position to execute a lease cum sale agreement and hand over

possession.

Further from the records, it is seen that in the representation dated 23.06.2000, the respondent has given his address as 14, New

Natarajapuram Street, MMDA Colony, Arumbakkam, Chennai-600 106. Therefore, there was no necessity for the appellants to send the

cancellation order to his old address in Tholkappiar Street. Once the period was extended by the Government for depositing 25%, and having

accepted the same, the appellants cannot later speak about the earlier cancellation. If the appellants had brought to the knowledge of the learned

Judge about the true position regarding the pending allotment due to civil dispute, the direction in W.P. No. 1517 of 2000 for auctioning the Plot

would not have been issued by this Hon''ble Court.

The various endorsements in the file would certainly point out that allotment order was never communicated to the respondent. There are many

entries which reflect that even though letters were prepared, none of them were served on the respondent. There is no proof for even sending the

same. For instance, after the entry regarding approval of working sheet and allotment order on 22.07.1991, there is no entry to show that the

working sheet was approved and the allotment order was sent on 23.07.1991. The next entry is on 22.08.1991 regarding the Civil Suit. If really,

the allotment order has been served, there would be an entry before 22.08.1991. Therefore as rightly held by the learned Single Judge, the terms

and conditions in the allotment order would come into operation only if it is served on the respondent. The appellants have not replied to any of the

representations found in the file. Without there being an allotment, there could be no lease cum sale agreement. Therefore, under the above

circumstances, we reject the contentions of the appellants that the respondent is duty bound to make payments and the non-payment is only due to

the failure on the part of the appellants to serve the allotment order.

For the above reasons, we affirm the orders of the learned Single Judge. However, with regard to the directions regarding payment, since the

respondent himself has agreed to pay 18% interest, the appellants are directed to issue the allotment order calculating the interest at the rate of

18% from 30.12.1986 on the remaining amounts, and revocation charges, within a period of four weeks from the date of receipt of this order, and

the respondent shall pay the same in one lump sum, within a period of four weeks from the date of receipt of such allotment order. Upon payment

of the amount, the appellants shall execute the sale deed in favour of the respondent. With the above directions, the Writ Appeals are dismissed.

No Costs. Consequently, connected miscellaneous petitions are closed.