Umamakheswari vs The Secretary to Government, Housing and Urban Development, The Assistant Secretary, Tamil Nadu Housing Board and The Executive Engineer and Administrative Officer

T.S. Sivagnanam, J.—By consent, the writ petition is taken up for final disposal.

The Petitioner has filed the above writ petition for a Writ of Certiorarified Mandamus, to quash the proceedings of the third Respondent, dated 26.02.2007 calling upon the Petitioner to pay the final cost of Rs. 1,96,956/- in respect of the HIG house to the Petitioner and consequently, direct the Respondents not to continue any amount from the Petitioner in executing the sale deed in her favour.

The facts of the case are that the Petitioner applied for allotment of HIG house at the Thanjavur Neighbourhood Scheme promoted by the Tamil Nadu Housing Board. The allotment was made in favour of the Petitioner pursuant to a Government Order in G.O. Ms. 2(D) No. 248, Housing and Urban Development Department, dated 07.06.1994. Based on the said Government order, a letter of allotment was issued on 28.07.1994 by the third Respondent, allotting the house under hire purchase scheme. The total area of the plot is 1 ground and 1163 sq.ft and the cost of house including the tentative cost of the land was fixed at Rs. 3,20,004/-. The Petitioner was directed to pay an initial deposit of Rs. 1,36,904/- and the remaining amount was payable in 14 years in monthly installments of Rs. 2716/- along with maintenance charges of Rs. 60/- totaling Rs. 2,776/-. As per the sketch appended to the order of allotment, the linear measurements were given for the total extent of one ground and 1163 sq.ft i.e., 3563 sq.ft. According to the Petitioner, she has paid initial deposit and has been regularly paying monthly instalments without any default. During 1999, the Petitioner has paid the entire tentative cost fixed in the order of allotment and subsequently, on 07.08.2005, the third Respondent also issued no due certificate for payment of the tentative cost.

It is further submitted that on 06.12.2005, the third Respondent directed the Petitioner to pay a further sum of Rs. 1,489/- towards outstanding due which was also paid by the Petitioner. Thereafter, the third Respondent by letter dated 18.09.2006, directed the Petitioner to pay a sum of Rs. 2,29,300/- towards the difference of land cost after fixing the final cost of the land and the Petitioner was granted time till 30.09.2006 to enable her to get the sale deed registered. By subsequent letter dated 25.10.2006, the third Respondent stated that the difference of cost is Rs. 2,11,400/- and directed the Petitioner to pay the amount on or before 30.10.2006. Since there was difference in the amount mentioned in the letters dated 18.09.2006 and 25.10.2006, the Petitioner requested the third Respondent to send the working sheet and as to how the difference in cost was fixed. On receipt of the working sheet, the Petitioner came to know that the difference of amount taken up by the third Respondent was not on the final cost but for the cost for the difference in the land area allotted to the Petitioner and towards interest. In the working sheet it was mentioned that the land cost was calculated by taking into consideration the standard extent of 2800 sq.ft. When the actual extent is 3563 sq.ft. and hence there was a difference of 752 Sq.ft. for which additional land cost was fixed at Rs. 66,776/- and the 10% of the land cost for the corner plot was fixed at Rs. 11,510/- totalling a sum of Rs. 79,236/- and the interest of Rs. 1,33,201/- was levied. On receipt of the working sheet, the Petitioner is said to have approached the third Respondent and informed that she was allotted only 3563 Sq.ft for which the tentative cost was fixed at Rs. 3,20,004/- and it was not mentioned that it was for 2800 sq.ft and even assuming that there is excess of land and the Petitioner contended that she is not liable to pay the interest of Rs. 1,33,200/-. A representation has also been sent to the second Respondent on 21.11.2006 informing about the discrepancy. On receipt of the said representation, the second Respondent demanded Rs. 1,96,956/- to enable the Petitioner to get the sale deed executed and registered. The Petitioner would further state that the points raised in the representation were not considered and an order has been passed mechanically. Therefore, the Petitioner would challenge the impugned order on the above grounds and also primarily contend that it is without jurisdiction and in violations of the principles of the natural justice.

5.1t is further submitted by the Petitioner that the Respondents ought to have considered that from the year 1994, the Petitioner was directed to pay the installments only for the extent of 3563 Sq.ft and without any notice to the Petitioner, the Respondents cannot now say that the amount was demanded for only 2800 Sq.ft. It is further submitted that no enquiry was conducted prior to passing of the said order.

The Respondent Board has filed a counter affidavit inter alia contending that the tentative cost of Rs. 3,20,000/- is not for the entire land but it is only for the standard size plot i.e., 2800 sq.ft only. The Thanjavur Neighbour hood Scheme was developed under a phased manner and the houses were constructed in phases I to VI. The house No. 797, is situated in phase No. IV, was allotted in favour of the Petitioner under the Government discretionary quota. The said plot is having a total plinth area of 3563 Sq.ft. During July 1994, the tentative cost was determined on the standard size plot of 2800 sq.ft without fixing the extra amount 10% for corner plot and additional amount for extra land cost.

It is further submitted by the Respondent that as per G.O. Ms. No. 1666, dated 16.12.1988, whenever the houses are allotted under Government discretionary quota the capitalization should be made for initial deposit and monthly instalments. In terms of the said order, the cost of capitalized and allotment order was issued to the Petitioner on 28.07.1994. It is further submitted that no due certificate issued on 07.08.2005 is with a condition that the allottee to pay the amount, if the Audit Branch announced any amount left out in her favour. It is further submitted that the final cost of the scheme for Phase I to VI finalized by the Board, by proceedings dated 14.08.2006 and for the allotment made under Phase IV, the cost has been fixed for the land at Rs. 55,000/- per ground as on 31.12.1993. Hence, before the final cost was fixed for the land the Board had issued demand letter on 06.12.2005 to remit a sum of Rs. 1,489/- as outstanding balance on the tentative cost. After finalization of the final cost, the demand letter was issued on 18.09.2006. Since it was some calculation error another demand letter was issued 25.10.2006 demanding Rs. 2,11,400/-. Therefore, it is submitted that there is no error in the said calculation. It is further submitted that when the Petitioner has admitted to pay the amount for the extra land cost for the corner plot, she is also bound to pay the interest as per the rules and regulations of the Board. It is further submitted that until the sale deed is issued for the land, the Board is entitled to claim the additional cost. Based on the above pleadings, Learned Counsel for the Respondent Board prayed for dismissal of the above writ petition.

Heard Mr. K.K. Ramakrishnan, Learned Counsel for the Petitioner and Mr. Pala Ramasamy, learned Special Government Pleader for the first Respondent and Mr. A. Kannan for the Respondents 2 and 3 and perused the entire materials available on record.

Learned Counsel for the Petitioner after reiterating the contentions raised in the affidavit filed in support of the writ petition would draw the attention of this Court to the sketch appended to the order of allotment and submit that it has been clearly mentioned that the extent of property is 1 ground and 1163 sq.ft and the sketch also gave a linear measurements of the plot. Therefore, it is submitted that the Respondent Board cannot now demand additional cost on the ground that the plot is a comer plot and therefore, the original tentative cost was calculated on standard size plot 2800 sq.ft and they are not entitled to additional amount.

l0. Learned Counsel would further submit that by the various demands issued on different dates as mentioned above, it is not clear as to how the Board had arrived at the said figure and this confusion itself is sufficient to set aside the demand.

11 . Learned Counsel would further contend by relying upon the various conditions in the lease cum sale agreement and state that absolutely no justification for the Respondent Board and would state that there is no condition in the lease cum sale agreement for a demand of such additional cost and more particularly, the interest. Learned Counsel for the Petitioner would further submit that the Petitioner had given a detailed representation on 21.11.2006 wherein after disputing the correctness of the calculation of the Petitioner, the second Respondent directed the Petitioner to pay the additional amount for the extra land to the extent of 752 sq.ft. However, Learned Counsel would submit that there is absolutely no justification on the part of the Respondent Board in demanding interest.

Learned Counsel would also place reliance on the decision of this Court in A. Saravanan Vs. The Executive Engineer cum Administrative Officer, Tamil Nadu Housing Board, Trichy Housing Unit and The Managing Director, Tamil Nadu Housing Board, and contend that for capitalisation of interest charges were not covered by agreement, advertisement, prospectus or allotment orders and therefore, capitalisation of interest would not come within the purview of clause in agreement which enabled fixation of final price at it contemplated only final compensation and cost of construction and not capitalization of interest. On the above grounds, the Learned Counsel would submit that the Petitioner is ready and willing to pay the cost for the additional extent of land but demand for interest has to be set aside.

It is seen from the orders of allotment dated 28.07.1994 that the cost of the houses including the tentative cost of the land fixed at Rs. 3,20,004/-. It is further stated in the order of allotment, the final price of the land due to the increase, cost of development charges, provision of amenities etc., will be determined only after all suits filed for determination of land cost has been disposed of and after all the land amenities, development charges etc., are finalised. This increase or difference in cost, if any should be paid by the allottee on demand. It is further stated that the balance cost of the house inclusive of the tentative cost of the land with interest at 15.75% per annum should be paid in monthly instalments within a period of 14 years at the rate of Rs. 2,716/- per annum and the provisional monthly maintenance charges is Rs. 60/- in totalling Rs. 2,776/- and penal interest shall be charged for belated payment at 18.75% per annum.

In the sketch given to the Petitioner, as noted above, the extent of the property has been mentioned as 1 ground and 1163 sq.ft with linear measurements of 63 feet north to south on the eastern side 70 feet north to south on the western side, 44 feet east to west on the northern side and 51 feet 6 inches east to west on the southern side together with a splay of 10 feet in the north eastern corner. This sketch has been signed by the third Respondent, Head surveyor, Thanjavur Housing Unit and Surveyor, Thanjavur Housing Unit. Therefore, it is to be noted that at the time of allotment, the extent which was allotted to the the Petitioner was 1 one ground and 1163 sq.ft. and it cannot be now state by the Board that the cost has been arrived at based on the standard size of the plot namely, 2800 sq.ft. In any event, the Respondent Board now pleads that it is a mistake. If that be the case, such a wrong order or wrong fixation shall not be allowed to stand and a party cannot be allowed to get an unintended benefit on account of wrong committed by a statutory authority. This error is liable for correction and the Petitioner cannot invoke the doctrine of promissory estoppel. It is to be noted that the Petitioner has also agreed that she is ready and willing to pay the additional land cost for the land to the extent of 752 sq.ft.

The only issue to be considered is as to whether the Petitioner could be called upon to remit the interest especially in the facts and circumstances of the case.

Learned Standing counsel for the Respondents Board would submit that in terms of the conditions in the agreement, the Board is entitled to demand interest. Learned standing counsel would place reliance upon Clause 32 of the Lease cum Sale Agreement stating that in all matters, the decision of the third Respondent, in the instant case final and binding.

After perusing the entire materials on record as well as the after going through the pleadings and hearing the arguments, I am of the view that the stand adopted by the Respondent Board is wholly unsustainable. It is true that under the terms and conditions of the Board, interest is contemplated for the payment of installments and penal interest is contemplated in the event of default. This peculiar contingency which has arisen in this case is not covered under any of the conditions in the agreement. In such circumstances, the Respondent Board cannot contend that the orders passed by them are final in terms of Clause 32 of the Lease cum Sale Agreement. The mutual rights and obligations between the allottees and Housing Board is pursuant to a contract which is under the allotment order and Lease cum Sale Agreement. Therefore any of the obligations on the parties to the contract has to be traced only to the conditions of allotment and the Respondent Board cannot rely upon any other instructions. Clauses 14 and 32 cannot automatically give a right to the Respondent Board for the purpose of demanding interest. The interest in the present case is penal in nature in the sense it is an additional burden to the Petitioner for no default committed by the Petitioner. Admittedly, there is no default in the payment of instalments as per the original schedule of payment. It is only much after the payment, the Board had now resorted to demand this additional amount stating that the extent has not been properly mentioned. If that be the case, the said amount for the additional extent would become payable on the date when such a demand is raised. In fact, the Petitioner has also agreed to pay the said amount. Therefore, the question of computing the interest for the cost of the additional extent of 752 sq.ft. does not arise and the Respondent Board cannot demand interest. Hence, the writ petition is allowed. The impugned order is quashed and the Petitioner is directed to pay the additional amount of land cost to the extent of 752 sq.ft and the sale deed shall be executed and registered in favour of the Petitioner without demanding any interest on the additional land cost payable for the extent of 752 sq.ft. No costs. Consequently, M.P.(MD) No. 2 of 2007 is closed.