IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.12.2008
C O R A M :
THE HONOURABLE MR. JUSTICE K. CHANDRU
W.P.Nos.3393 of 2004, 35762 to 35766
of 2007, 35886 to 35900 of 2007,
42096 of 2002 and
M.P.No.2 of 2007 (20 Nos.) in
WP.Nos.35762 to 35766 and
35886 to 35900 of 2007
Mr.M.Palanivel ..Petitioner in W.P.No.3393 of 2004
Mr.A.Paulraj ..Petitioner in W.P.No.42096 of 2002
Mr.V.Govindaraj ..Petitioner in W.P.No.35762 of 2007
Mr.K.Anbazhakan ..Petitioner in W.P.No.35763 of 2007
Mr.D.Vijayan ..Petitioner in W.P.No.35764 of 2007
Mr.K.Murugesan ..Petitioner in W.P.No.35765 of 2007
Mrs.E.Ponnammal ..Petitioner in W.P.No.35766 of 2007
Mr..M.Paramasivam ..Petitioner in W.P.No.35886 of 2007
Mr.G.Arumugam ..Petitioner in W.P.No.35887 of 2007
Mr.G.Devan ..Petitioner in W.P.No.35888 of 2007
Mr.B.Narayanan ..Petitioner in W.P.No.35889 of 2007
Mr.R.Vadivelu ..Petitioner in W.P.No.35890 of 2007
Mrs.D.Dhanalakshmi ..Petitioner in W.P.No.35891 of 2007
Mr.D.Dorai Kannu ..Petitioner in W.P.No.35892 of 2007
Mrs.M.Boologam ..Petitioner in W.P.No.35893 of 2007
Mrs.V.Devi ..Petitioner in W.P.No.35894 of 2007
Mr.K.Kuppan ..Petitioner in W.P.No.35895 of 2007
Mr.K.Ayyappan ..Petitioner in W.P.No.35896 of 2007
Mrs.B.Santhakumari ..Petitioner in W.P.No.35897 of 2007
Mr.M.Kuraldasan ..Petitioner in W.P.No.35898 of 2007
Mr.D.Kuppan ..Petitioner in W.P.No.35899 of 2007
Mr.D.Augastin ..Petitioner in W.P.No.35900 of 2007
-vs-
1. The Government of Tamil Nadu,
rep.by its Secretary to Government,
Department of Housing and Urban
Development, Fort St.George,
Chennai.
2. The Tamil Nadu Housing Board, rep.
by its Managing Director,
Nandanam, Chennai-600 035.
3. The Allotment Service Manager,
Special Division-I,
Tamil Nadu Housing Board,
A.A.N.N.E, Thirumangalam,
Chennai-600 101. .. Respondents in all the writ
petitions
PRAYER : Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the records in pursuance of the order passed by the third respondent dated 26.8.2001 (WP.3393 of 2004); dated 30.8.2001 (WP.42096 of 2002); dated 26.8.2001 in Ref.Letter No.E4/9905/95 (WP.35762 of 2007); dated 30.8.2001 in Ref.Lr.No.E4/2632/96 (WP.35763 of 2007); dated 06.9.2001 in Ref.No.E4/9945/95 (WP.35764 of 2007); dated 27.8.2001 in Ref.Lr.No.E4/459/96 (WP.35765 of 2007); dated 30.8.2001 in Ref.Lr.No.E4/10222/95 (WP.35766 of 2007); dated 29.8.2001 in Ref.Lr.No.E4/9917/95 (WP.35886 of 2007); dated 26.8.2001 in Ref.Lr.No.E4/9919/95 (WP.35887 of 2007); dated 26.8.2001 in Ref.Lr.No.E4/686/96 (WP.35888 of 2007); dated 14.8.2001 in Ref.Lr.No.E4/453/96 (WP.35889 of 2007); dated 28.8.2001 in Ref.Lr.No.E4/9906/95 (WP.35890 of 2007); dated 03.9.2001 in Ref.Lr.No.E4/895/96 (WP.35891 of 2007); dated 30.8.2001 in Ref.Lr.No.E4/9904/95 (WP.35892 of 2007); dated 20.8.2001 in Ref.Lr.No.E4/9992/95 (WP.35893 of 2007); dated 14.8.2001 in Ref.Lr.No.E4/9980/95 (WP.35894 of 2007); dated 03.9.2001 in Ref.Lr.No.E4/977/96 (WP.35895 of 2007); dated 30.8.2001 in Ref.Lr.No.E4/2633/96 (WP.35896 of 2007); dated 31.8.2001 in Ref.Lr.No.E4/897/96 (WP.35897 of 2007); dated 28.8.2001 in Ref.Lr.No.E4/9105-A/95 (WP.35898 of 2007); dated 06.9.2001 in Ref.Lr.No.E4/893/96 (WP.35899 of 2007); dated 26.8.2001 in Ref.Lr.No.E4/2036/98 (WP.35900 of 2007) respectively and quash the same.
For petitioners : Mr.Thiageswaran for
M/s.Waraon and Sai Rams
For respondents : Mr.A.Arumugam, Spl.G.P.
Mr.A.Vijayakumar for TNHB
*****
O R D E R
Heard Mr.Thiageswaran for M/s.Waraon and Sairams; Mr.A.Arumugam, learned Special Government Pleader appearing for the State of Tamil Nadu; and Mr.A.Vijayakumar, learned standing counsel for the Tamil Nadu Housing Board and perused the records.
2. In these 22 writ petitions, the challenge is to the action taken by the second respondent Tamil Nadu Housing Board in enhancing the cost of the plot allotted to the petitioners without any justification and the consequential eviction notice ordered in terms of Section 84(1) of the Tamil Nadu Housing Board Act, 1961. The petitioners were originally living near Koimbedu Bridge on poramboke land. Since there was a fire which engulfed the slum, in which the petitioners were living, the Housing Board came forward to provide an alternative site for the petitioners.
3. Therefore, a list of victims was enumerated by the second respondent Housing Board and an alternative site near the Mogappair Eri was conceived for the petitioners under the Mogappair Eri Land Bank Scheme. Each of the allottees was allotted a vacant site approximately to an extent of 400 to 500 sq.ft. for constructing houses on their own initiative.
4. By an allotment order dated 03.10.1995, the petitioner in W.P.No.3393 of 2004 was informed that he was allotted Plot No.46 in an extent of 468 sq.ft. under the Mogappair Eri Land Bank Scheme. At the relevant time (viz., 1995), the tentative cost of the land per ground (2400 sq.ft.) in the scheme area was fixed as Rs.1,10,000/-. Therefore, the proportionate cost for the petitioner’s plot was fixed tentatively at Rs.19,750/-. The petitioner was directed to submit his application in a prescribed format pursuant to the notice of allotment together with a registration fee of Rs.150/-. The petitioner was also informed that he should pay an advance deposit. He was also informed that regular allotment order will be issued on payment of initial deposit and he will be notified about the date of commencement of the first instalment.
5. Accordingly, the petitioner deposited a sum of Rs.2860/- on 24.9.1997. After four years, the petitioner was given an allotment order dated 26.8.2001 by the second respondent Housing Board. In that order, it was stated that the cost of the plot was Rs.73,715/- and after adjusting the initial deposit made by him, the petitioner was directed to pay Rs.1150/- towards monthly instalment which will start from September 2001 onwards and will be spread over for a period of 15 years. The rate of interest was shown as 18% and in case of failure, the penal interest was fixed at 21%. The petitioner was directed to enter into a lease-cum-sale agreement pursuant to the said allotment.
6. The petitioner, shocked by the sudden increase of the cost of the plot, through the Association formed by them, sent a letter stating that all the persons who were allotted the plots were all oustees from Koyambedu due to a fire accident. Only because of a rehabilitation proposal, they had agreed to avail the allotment of plot at the rates indicated by them. When most of them were daily wage labourers, it was impossible for them to pay monthly instalments @ Rs.1150/- that too, for a period of fifteen years. The petitioners were agreeable to the firm cost it fixed at Rs.27,000/- per plot. They are also willing to pay the amount either on instalment basis or on outright basis.
7. The second respondent Housing Board was not agreeable for the same. Therefore, they came up with a warning notice that in case the amounts were not paid within 15 days, they will be constrained to take appropriate eviction proceedings. In some cases, eviction notices were issued under section 84(2) read with section 85(1) of the Tamil Nadu Housing Board Act, 1961 because of the non-payment of instalments towards the plot cost. At this stage, the petitioners have moved this Court seeking to challenge the action initiated by the second respondent Housing Board.
8. This Court in some cases granted interim stay on the ground that the petitioners should deposit 50% of the difference in amount within a specified date, failing which, the stay applications were liable to be dismissed. In some cases, no interim orders were passed.
9. On notice form this court, the second respondent Housing Board had filed counter affidavits in W.P.No.3393 of 2004 and W.P.No.42096 of 2002. The learned counsel for the Housing Board had also stated that the same counter affidavit is good for other writ petitions also. Since all the writ petitions have raised identical contentions, they were grouped and heard together and a common order is being passed.
10. In the counter affidavit, the second respondent Housing Board has come up with a plea that the cost of plot per ground at the time of provisional allotment order issued on 01.8.1995 was Rs.1,10,000/- per ground and it was only a tentative cost. Subsequently, the cost of the plot after development came to Rs.1,49,400/- as on 31.12.1995. Based upon this revised rate, the allotment orders came to be issued. The monthly instalment (EMI) was fixed on the basis of 18% rate of interest. The petitioners have not paid these amounts. It was agreed that all the petitioners have paid their initial deposits. The cost of plot was revised because the Board had to incur expenditure on the basic amenities like provision of road and drainage. Similar stand was taken in the counter affidavit filed in W.P.No.42096 of 2002.
11. Mr.Thiageswaran, learned counsel for the petitioners submitted that the petitioners have been taken for a ride by the lure of allotment of a plot by the respondents as rehabilitation scheme for the fire victims of the slum near Koyambedu bridge. When the petitioners have become homeless due to a fire tragedy, the Government itself came forward with the Rehabilitation package. The petitioners have agreed to avail the said Scheme even though it was given on payment of the cost of the plot to the Housing Board. The petitioners do not quarrel about the revised cost at the rate of Rs.1,49,400/- per ground as mentioned by the second respondent. It was unreasonable for the respondents to come forward to allot the plot in the year 2001 especially when they have paid their initial security deposit of Rs.2680/- in the year 1995 itself and for that deposit, no interests have been paid for over ten years. Further, the revised cost itself is a heavy burden on the petitioners since most of them were living either doing domestic help or involved in some petty employment/trade. If they were asked to pay the interest at the rate of 18% and EMI spread over to 15 years, they can never afford to pay the same and it was beyond their means.
12. The learned Standing Counsel for the Housing Board, however, stated that the interest rate fixed was the normal rate for any allotment. The EMI has been worked out on the basis of 15 years period and the petitioners cannot claim any exemption. In some of the cases, the counsel for the petitioners had also alternatively made a plea that if they are allowed to pay the entire cost of the plot without the EMI either by two or three instalments, it may work out not more than Rs.25,000/- to Rs.30,000/- and many of the petitioners would be able to pay the firm cost in one stroke rather than being burdened with the payment of 18% interest per annum, failing which, with 21% penal interest. They also submitted that after a fire tragedy, they were removed involuntarily and, therefore, the question of their availing a plot on an outright purchase basis itself is objectionable. In any event, the respondent Housing Board should also be considerate in their rate of interest payable.
13. It was further submitted that years ago, then prevailing bank interest was more or less commensurate with the interest charged by the Tamil Nadu Housing Board. But today the banking sector had reduced the interest rate for any loan transaction including housing loan. The respondent Housing Board cannot stick to an usurious rate of interest. The learned counsel for the petitioners also submitted that the respondent State have been allotting huge areas for foreign companies involved in the Information and Technology sector on priority basis either free of cost or free of interest and development charge. When multi-national companies can avail such concessions, it is not clear as to how the petitioners, who are all slum dwellers and who have been allotted small plots to the extent of one-sixth of a ground, which is enough to build a small dwelling unit, have to pay interest at the rate of 18% per annum.
14. Considering the fact that the petitioners have been rendered homeless due to a fire tragedy and the State had promised to re-locate them in a proper place and had also promised that they will be provided with small plots of land over which they could make their own construction of an house and the fact that all the petitioners belong to economically weaker sections (EWS) and living out on daily wages, the action of the respondents in charging arbitrary interest almost at usurious rates cannot be permitted.
15. The Supreme Court in more than one decision had emphasized the ”right to shelter” as part of the Fundamental Right guaranteed under Article 21 of the Constitution. In this connection, it is necessary to refer to the judgment of the Supreme Court in Shantistar Builders -vs- Narayan Khimalal Totame and others ((1990) 1 SCC 520). The following passages found in paragraphs 9 to 11 and 13 may be usefully reproduced below:
”Para 9. : Basic needs of man have traditionally been accepted to be three food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fire-proof accommodation.
Para 10. : With the increase of population and the shift of the rural masses to urban areas over the decades the ratio of poor people without houses in the urban areas has rapidly increased. This is a feature which has become more perceptible after independence. Apart from the fact that people in search of work move to urban agglomerations, availability of amenities and living conveniences also attract people to move from rural areas to cities. Industrialisation is equally responsible for concentration of population around industries. These are features which are mainly responsible for increase in the homeless urban population. Millions of people today live on the pavements of different cities of India and a greater number live animal-like existence in jhuggis.
Para 11. : The Planning Commission took note of this situation and was struck by the fact that there was no corresponding rise in accommodation with the growth of population and the shift of the rural people to the cities. The growing realisation of this disparity led to the passing of the Act and acquisition of vacant sites for purposes of housing. Considerable attention has been given in recent years to increasing accommodation though whatever has been done is not at all adequate. The quick growth of urban population overshadows all attempts of increasing accommodation. Sections 20 and 21 of the Act vest power in the State Governments to exempt vacant sites from vesting under the Act for purposes of being taken over if housing schemes are undertaken by owners of vacant urban lands. Section 21 specifically emphasises upon weaker sections of the people. That term finds place in Article 46 of the Constitution and Section 21 uses the same language. Weaker sections have, however, not been defined either in the Constitution or in the Act itself. An attempt was made in the Constituent Assembly to provide a definition but was given up. Attempts have thereafter been made from time to time to provide such definition but on account of controversies which arise once the exercise is undertaken, there has been no success. A suggestion for introducing economic criterion for explaining the term was made in the approach to the Seventh Five Year Plan (1985-1990) brought out by the Planning Commission and approved by the National Development Council and the Union Government. A lot of controversy was raised in Parliament and the attempt was dropped. In the absence of a definition perhaps a proper guideline could be indicated but no serious attention has been devoted to this aspect.
… …
… …
Para 13. : In recent years on account of erosion of the value of the rupee, rampant prevalence of black money and dearth of urban land, the value of such land has gone up sky-high. It has become impossible for any member of the weaker sections to have residential accommodation anywhere and much less in urban areas. Since a reasonable residence is an indispensable necessity for fulfilling the constitutional goal in the matter of development of man and should be taken as included in life in Article 21, greater social control is called for and exemptions granted under Sections 20 and 21 should have to be appropriately monitored to have the fullest benefit of the beneficial legislation…..”
(Emphasis Added)
16. Similarly, the very same view was reiterated in U.P.Avas Evam Vikas Parishad and another -vs- Friends Co-op.Housing Society Limited and another (1995 Supp (3) SCC 456). It is necessary to refer to the following passage found in para 8 of the said judgment.
Para 8 : ”… Right to shelter is a fundamental right, which springs from the right to residence assured in Article 19(1)(e) and right to life under Article 21 of the Constitution. … ”
17. In the light of the petitioners having a Fundamental Right to Shelter guaranteed under Article 21 of the Constitution and the respondents also have brought them under a Rehabilitation Scheme and allotted a small extent of land ranging from 400 to 500 sq.ft., the demand made by the petitioners for adding the interest @ 18% p.a. in EMI was totally unreasonable. It requires a reduction considering the fact that even the banking rates have been reduced during the relevant period. In this context, it is relevant to note that the Supreme Court dealt with the allotment of plots by a Housing Society and after finding that the interest rate was heavy, reduced the interest rates.
18. Necessary reference may be made to Bareilly Development Authority -vs- Vrinda Gujarati and others ((2004) 4 SCC 606. It is relevant to refer to the following passage found in para 25 of the said judgment:-
25. At the time of hearing, learned counsel made an appeal to the Court to reduce the rate of interest from 18% to 6% on the ground that the allottees under the Scheme in question belonged to the middle income group and, therefore, they would not be in a position to pay the interest. In our view, once the liability of the respondents to pay the balance amount remaining unpaid out of the final cost of the flat is not struck down and remains in existence, the appellant cannot be asked to forego the interest for the period, or any part thereof, for which the said amounts remain unpaid. The High Court is not right in creating double jeopardy for the BDA directing it to pay interest to the respondents while at the same time to direct the respondents not to pay interest on the unpaid amounts. However, taking note of the financial status of the respondents and in the peculiar facts and circumstances of the case, we direct the respondents to pay simple interest @ 9% on the enhanced price of the flats.
(Emphasis Added)
19. In the light of the above legal precedents and in the light of the factual matrix of the present cases, this Court is of the opinion that the petitioners are entitled to partially succeed in this batch of writ petitions. Therefore, the writ petitions are partially allowed with the following directions:-
(a)All the eviction notices are quashed;
(b)The respondent Housing Board is directed to fix the revised cost of plots at the rate of Rs.1,49,400/- per ground (2400 sq.ft.) and to calculate proportionate cost payable by each of the petitioners;
(c)The EMI has to be calculated at the rate of 9% interest and not at 18% as ordered in the allotment order, in tune with the decision of the Supreme Court in Bareilly Development Authority case (cited supra).
(d)The Housing Board is also directed to pay interest at the rate of 9% with the initial deposit paid by the petitioners from 19.9.1995 till date and give credit to the same towards the amounts to be paid by the petitioners.
(e)If any of the petitioners wants to avail outright purchase of their plots, the proportionate cost may be calculated and collected at one stroke so that they will not have any liability to pay interest added towards the said cost of the plot. In such cases, only firm cost is to be collected without adding any interest.
Consequently, the connected miscellaneous petitions are closed. No costs.
js 10.12.2008
Index :yes/no
Internet :yes/no
To
1. The Secretary to Government,
Department of Housing and Urban
Development, Fort St.George,
Chennai.
2. The Managing Director,
Tamil Nadu Housing Board
Nandanam, Chennai-600 035.
3. The Allotment Service Manager,
Special Division-I,
Tamil Nadu Housing Board,
A.A.N.N.E, Thirumangalam,
Chennai-600 101.
K. CHANDRU, J.
js
W.P.Nos.3393 of 2004, 42096 of 2002, 35886 to
35900 of 2007, 35762 to
35766 of 2007 and
M.P.No.2 of 2007 (20 Nos.)
10.12.2008