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Judgment
B. Rajendran, J.—The petitioner herein is a Government servant sought for an allotment of Government house in the Annal Agraharam Street at Kumbakonam and also sought to avail the loan from the Government for paying the amount to the Tamil Nadu Housing Board for such allotment. The petitioner was allotted the house bearing Door No. A.61 on the basis of the Government loan scheme and that the loan would be sanctioned within a period of six months. It was also made clear that the sanctioned loan amount would be directly paid to the Tamil Nadu Housing Board and whereas as per the terms and conditions of the hire purchase agreement entered into between the petitioner and the Housing Board the third respondent herein, the petitioner is liable to pay 1/3 amount of the total cost of the house within a period of 21 days from the date of receipt of the order. The allotment letter was issued by the Housing Board vide letter No. R4/987/98 dated 30.04.1999. The Tamil Nadu Housing Board also directed the petitioner to pay the interest for the total cost of the house i.e. Rs. 5,00,000/- for a period of six months in advance and pursuant to that the petitioner also had paid a sum of Rs. 26,602/- being interest for six months on 19.05.1999, whereas the total cost of the house was Rs. 5,03,700/-.
It is the contention of the petitioner that under law the Government ought to have granted the loan in six months time and the petitioner herein also paid interest for six months on the value of the house. But, unfortunately, the Government have not taken any steps to pay the amount to the Tamil Nadu Housing Board within a period of six months, whereas they have paid the entire amount of full value of the property, namely, Rs. 5,00,000/- by cheque only on 02.04.2002 and this was also directly paid to the Tamil Nadu Housing Board and the Tamil Nadu Housing Board further directed the petitioner to pay another sum of Rs. 10,000/- towards the interest which was also paid by the petitioner on 13.03.2002.
The petitioner would now contend that to the petitioner''s shock and surprise he received a notice from the third respondent namely the impugned notice dated 23.02.2005 calling upon the petitioner to pay a sum of Rs. 1,79,115/- being interest due on the actual payment due to the Tamil Nadu Housing Board from the date of sanction or allotment of the house till the date of payment from the Government and also a further sum of Rs. 39,167/- being the penal interest payable on the above said sum. According to the petitioner, the notice is illegal, invalid and non est in the eye of law. As the petitioner was sanctioned the loan by the Government only, then the allotment was made and hence he has been paid the six months interest in advance taking into consideration the period required for sanctioning the loan by the Government. If there is any delay in the payment, the petitioner would not in any way be liable to pay any interest much less the penal interest on such delayed payment.
The petitioner would also further contend that the second respondent alone is liable to sanction and pay the amount to the third respondent and therefore the interest cannot be claimed from the petitioner. Hence, the petitioner has filed this Writ Petition challenging the impugned order dated 23.02.2005 disputing his liability to pay interest for the delayed payment.
The Tamil Nadu Housing Board/the third respondent herein has filed a detailed counter in which they would contend that as per the original allotment itself and as per the terms and conditions of the allotment the cost was fixed as Rs. 5,03,700/- and that the petitioner was liable to pay initial deposit of Rs. 2,25,200/- within 21 days from the date of receipt of the allotment order and that the balance cost of the house inclusive of the cost of the land with interest at 18.25% should be paid in monthly instalment within a period of 9 years at Rs. 5,299/- per month and the provisional monthly maintenance charge of Rs. 60/- per month totalling Rs. 5,359/- has to be paid on or before 10th of every month. It was also further accepted by the parties, if such payment has not made, penal interest will be levied at the rate 21.25% for belated payment and another sum of Rs. 4,000/- should be paid as one time payment towards capital fund for the maintenance of house along with the costs of construction by the Board. The allotment was made only on the above conditions and after getting an allotment the petitioner was a Government Servant, had given a letter dated 19.08.1999 to the Executive Engineer and administrative officer, Thanjavur Unit for permission to remit the six months interest on initial deposit and requested to issue A and B certificates enabling him to get Housing Building allowance loan and executed lease cum sale agreement and also requested to give key and on obtaining the consent letter in ten rupees stamp paper stating that he is ready and willing to pay interest from the date of allotment till the date of loan sanctioned. He was given A and B certificate to avail the House Building Advance Loan from his employer and the petitioner also executed lease cum sale agreement. Pursuant to this, the petitioner has paid a sum of Rs. 26,602/- on 19.05.1999 being the six months interest based on the above said condition the possession was handed over to the petitioner.
The third respondent would further contend that thereafter three years from the date of allotment, the petitioner had paid only Rs. 5,00,000/- as cheque on 02.04.2002 through the District Collector, Thanjavur and the petitioner further paid a sum of Rs. 10,000/- on 13.03.2002 towards further additional interest. Therefore, in all the petitioner had paid only Rs. 5,36,242/- as on 02.04.2002, whereas the petitioner is liable to pay on 02.04.2002 as follows:
The tentative cost of the house : Rs. 5,03,700/- Interest chargeable from the date of allotment till the sanction of HBA : Rs. 1,79,115/- Penal interest for belated payment : Rs. 39,167/- -------------- Total : Rs. 7,21,982/- --------------
In view of the lesser payment made by the petitioner without interest, the third respondent has sent a letter dated 18.01.2005 giving a detailed working sheet and permitting him to pay the balance amount with interest and penal interest to be paid on a monthly basis at the rate of Rs. 4,800/- per month for five years along with subsequent interest. The third respondent was also further contended that the petitioner, being a Government servant, who has the knowledge of the things, has slept over the matter from 1999 onwards conveniently and knowing fully well that he would be called up to pay the interest for the delayed payment, has not taken any steps with the Government to sanction the loan and therefore, rightly he was called upon to pay the interest and the penal interest for such delayed payment and the petitioner has chosen to challenge this order without any merit basis and the Writ Petition is not maintainable. He was not bound by the terms and conditions of the lease-cum-sale agreement entered into between the parties and hence the petition is liable to be dismissed.
When the matter was taken up, heard the learned Counsel on both sides.
At the time of hearing, apart from the pleadings the petitioner relied upon the G.O.Ms. No. 174, Housing and Urban Development Department, dated 07.02.2001, wherein the petitioner would contend that the Government have taken into consideration the difficulty of the Government servant in paying the interest payable to the Tamil Nadu Housing Board has given a concession in the said Government Order as follows:
The Government after careful consideration, approve the proposal of the Chairman and Managing Director, Tamil Nadu Housing Board and issue the following orders:
(i) The Chairman and Managing Director, Tamil Nadu Housing Board is requested to collect interest from the Government servant allottees at the prevailing rate on 1/3rd or 1/4th cost of the flat/house, as the case may be, and interest on the monthly instalments alone, from the date of ready for occupation, till the date of sanction of House Building Advance.
(ii) This procedure should be adopted in respect of all allotments made on or after 1st January 1985, as stipulated in G.O.Ms. No. 1666, Housing and Urban Development Department, dated 16.12.1988.
(iii) The interest should be calculated as stipulated in items (i) and (ii) above and the excess amount so far paid by the allottee, if any, should be adjusted towards future interest to be paid by the allottee, till the sanction of House Building Advance or towards the balance cost of the flat/house. The excess amount paid by the allottee should be refunded if the entire cost of the flat/house has been paid in full, as the case may be.
The petitioner would contend that he cannot be liable to pay the interest or the penal interest as in this case in a special gesture, the Government had sanctioned 100% of the amount of the value of the property as loan and therefore, even though initially, he was liable to be 1/3rd of the amount, later on as the full payment namely, 100% has been paid by the Government. The question of payment of interest to the Tamil Nadu Housing Board for the belated payment made by the Government cannot be saddled on the petitioner. He would also further vehemently argue that on the date of allotment in the year 1999 itself the Government has approved the loan and hence he is not liable to pay.
Contra, both the learned Government Advocate as well as the learned Counsel appearing for the Tamil Nadu Housing Board specifically brought to the notice of this Court that initially as per the agreement entered between the parties was that the applicant is bound to pay Rs. 2,25,200/- towards initial deposit within 21 days from the date of receipt of the order, which is incorporated in the letter No. R4/987/98, dated 30.04.1999, issued by the Executive Engineer and Administrative Officer, Thanjavur Housing Unit to the petitioner and accepted by him. Therefore, the petitioner has not at all chosen to pay the amount, whereas he only pleaded and paid the interest amount for six months period for the grant of loan. Definitely he is liable to pay both the interest as well as penal interest till the date of payment, namely, on 02.04.2002. But, at this point of time, the Government in G.O.Ms.174, Housing and Urban Development Department, dated 07.02.2001, subsequent to the already issued order in G.O.Ms. No. 1666, Housing and Urban Development Department, dated 16.12.1988, taken into consideration the difficulty of the Government servant in paying the interest payable to the Tamil Nadu Housing Board, has given the above said concession. In giving this concession, the Government have taken into consideration that as per the original agreement, the Tamil Nadu Housing Board would have received either 1/3rd or 1/4th of the total cost of the constructed building as initial payment within the relevant period noted in the agreement and thereafter the Tamil Nadu Housing Board would have only received the monthly instalment for a period of 5 years and 9 years as the case may be and then if any payment is not paid they could have charged interest or penal interest, whereas in the Government Housing Loan scheme instead of payment made on monthly instalment the entire sale consideration of the property is being paid in one lump sum inclusive of 1/3rd and 1/4th of the amount though belatedly paid, the actual loss to the Tamil Nadu Housing Board would be the non recovery of the 1/3rd or 1/4th amount of initial deposit and the interest on the monthly instalment due and payable by the petitioner to the Tamil Nadu Housing Board till the payment in full. Therefore, taking into consideration the vital aspect, the Government, which has to issue the Government Order, has directed the Chairman and Managing Director, Tamil Nadu Housing Board to collect interest from the Government servant allottees at the prevailing rate on 1/3rd or 1/4th cost of the flat/house as the case may be, and interest on the monthly instalments alone, from the date of ready for occupation, till the date of sanction of House Building Advance.
In this case, it is pertinent to point out that though originally the sanction or allotment was made as early as on 30.04.1999 by the Tamil Nadu Housing Board and wherein the petitioner agreed to pay a sum of Rs. 2,25,200/- within 21 days from the date of receipt of the letter and also the interest for a period of six months namely, the period for sanctioning the loan excepting the six months interest to the tune of Rs. 26,602/- which was paid on 19.05.1999. The petitioner has not at all chosen to pay any amount till the full payment was made by the Government on 02.04.2002. It is also pertinent to point out here that after 19.05.1999 payment, the petitioner had not taken any steps whatsoever to seek for the sanction of the loan or for payment of the loan to the Tamil Nadu Housing Board and he has also not produced any record for any venture which he meant for taking any steps to clear the loan. The petitioner has neither chosen to pay 1/3rd amount Rs. 2,25,200/- as agreed to pay nor has paid monthly instalment, but having taken possession of the property even as early as in 1999, he has neither paid monthly instalment nor interest and conveniently left it to the Government to pay within its own time frame. Therefore, the petitioner cannot plead at this point of time that his loan was sanctioned by the Government on 08.11.1999 itself or the allotment was made 30.04.1999 and therefore he has not accepted to pay interest is legally not sustainable. As stated supra he is not a layman to be not aware of the non payment or delayed payment in which he would be called upon to pay the interest and penal interest, but in this case since Government have subsequently come forward with the G.O.Ms. No. 174, Housing and Urban Development Department, dated 16.12.1988 taking into consideration the plight of the Government servant in respect of such delayed payment by Government. Insofar as it relates to the payment of interest as rightly pointed out in the said Government Order, if at all the Tamil Nadu Housing Board could have received value of the property within 21 days and thereafter they would have been only getting the monthly instalment, therefore, what they could now claim from the petitioner would be the interest for the delayed payment of this 1/3 or 1/4th as the case may be applicable to the petitioner of the value of the property, which ought to have been paid within 21 days from the date of allotment and the subsequent monthly instalment which has been failed to be paid till the full payment has been effected on 02.04.2002, the interest for all these payments alone could be sought for and not interest on the full amount or the full value of the house from the petitioner, as the balance amount was a loan sanctioned by the Government and the loan ought to have been disbursed by the Government directly within a period of six months, for which the petitioner had already paid interest in advance.
Now, the learned Counsel appearing for the Tamil Nadu Housing Board pointed out that as far as the loan is concerned the petitioner should have taken steps and that they would not be expecting payment of the loan as it is a duty of the petitioner inasmuch as these points have been well-considered by the subsequent G.O.Ms. No. 174, Housing and Urban Development Department, 07.02.2001 and the G.O. binds both the respondents and the petitioner.
This Writ Petition is allowed to this extent only, namely, the impugned notice dated 23.02.2005 claiming the entire interest from the petitioner on the full value of the house is quashed and the third respondent is directed that they are entitled to collect only the interest and other charges from the petitioner applying the G.O.Ms. No. 174, Housing and Urban Development Department, dated 07.02.2001 and thereby claim interest only for the amount of 1/3 or 1/4th of the cost of the building from the date of allotment till the date of payment, namely, 02.04.2002 and also on the expected monthly instalment due payable by the petitioner from the date of allotment till 02.04.2002 when the amount was paid in full. Out of the amount in these two categories has to be worked out and can be claimed and the claim is modified to these extent alone can be collected from the petitioner. The third respondent is at liberty to issue fresh demand notice only to this effect. The petitioner would be definitely entitled to the benefits of the G.O.Ms. No. 174, Housing and Urban Development Department, dated 07.02.2001 and the third respondent is at liberty to claim the amount from the petitioner as per the said Government Order. I am fortified with the ruling of this Hon''ble Court rendered in W.P. No. 24805 of 2003 dated 01.12.2008 wherein The Tamil Nadu Housing Board House Owners Welfare Association has filed the Writ Petition seeking for issuance of a Writ of Certiorarified Mandamus forbearing the respondents from levying any interest or penal interest for the delayed payment of initial deposit to the Tamil Nadu Housing Board, in which this Hon''ble Court has given the following findings:
On going through the said Government Order and also on getting instructions, learned Counsel for the petitioner Association was agreeable, if the relief granted in terms of Paragraph No. 4 of the said Government Order and if it were extended to them since that will satisfy their interest. Though the learned Counsel for the Tamil Nadu Housing Board states that the order impugned in the present Writ Petition is passed by the State Government and since there is no request to implement G.O.Ms. No. 174, dated 07.02.1991, this Court cannot dispose of the representation merely on any technical ground. When the State Government has issued G.O.Ms. No. 174, Housing and Urban Development Department, in respect of allottees made on or after 01.01.1985 and also the said Government Order is applicable to the Government Servants who are allottees of houses/flats by the Board which is also admitted in paragraph No. 12 of the counter, this Court has power to mould the relief.
Therefore, a direction is issued to the respondents to comply with Paragraph No. 4 of the G.O.Ms.174, Housing and Urban Development Department, dated 07.02.1991 in respect of the members of the petitioner Association who are Government Servants and who also raised House Building Advance and grant appropriate relief in accordance with the same.
Applying these principles, the petitioner also would be entitled to claim the benefits under G.O.Ms. No. 174, Housing and Urban Development Department, dated 07.02.2001. To this extent, this Writ Petition is allowed. Consequently, connect miscellaneous petition is closed. No Costs.