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2005 Supreme(Mad) 301
High Court of Judicature at Madras
THE HONOURABLE CHIEF JUSTICE MR. MARKANDEY KATJU & THE HONOURABLE MR. JUSTICE C. NAGAPPAN
K.Rangasamy & Another - Appellant
Versus
Tamil Nadu Housing Board & Others - Respondents
Writ Appeal Nos. 131 & 132 of 2002
Decided On : 18 February 2005
The main legal point established is that an immovable property can only be sold by a registered sale deed and not by a mere allotment order, and a lease cum sale agreement remains a lease agreement until the final instalment is paid, and it becomes a sale only when the sale deed is executed.
Headnote:
G.O.Ms.No.29 - Housing Allotment - 22.01.2001 - [G.O.Ms.No.29]
Fact of the Case:
The petitioners were allotted houses by the respondent/board and took possession. They sought reduction of house cost based on a government order, but their request was rejected. The single Judge dismissed the writ petitions without calling for counter affidavits.
Finding of the Court:
The court found that the houses in question were unsold houses, although allotted to the petitioners, and remanded the matter to the single Judge for a fresh decision after affording opportunity to the respondents to file counter affidavits.
Issues: The main issue was whether the petitioners were entitled to the benefit of G.O.Ms.No.29 dated 22.01.2001, and whether the houses remained unsold till 31.12.2000.
Ratio Decidendi: The court held that an immovable property can only be sold by a registered sale deed and not by a mere allotment order. It also emphasized that a lease cum sale agreement remains a lease agreement until the final instalment is paid, and it becomes a sale only when the sale deed is executed.
Final Decision: The writ appeals were allowed, and the matter was remanded to the single Judge for a fresh decision after affording opportunity to the respondents to file counter affidavits.
Markandey Katju, CJ.
These writ appeals have been filed against the impugned judgment of the learned single Judge dated 20.11.2001, by which writ petition nos. 17187 & 17188 of 2001 were dismissed by a common order.
2. The facts in detail are given in the impugned judgment of the learned single Judge, and hence, we are not repeating the same, except where necessary.
3. It is evident from the facts that the petitioners/appellants were allotted houses by the respondent/board, and the appellants took possession of the same on 02.01.2001 in pursuance of allotment orders dated 05.12.2002 and 17.11.2000 respectively. The allotment orders state that the selling price of the houses including the tentative costs of the land in respect of W.P.No.17187 of 2001 is Rs.5,79,500/- and in respect of W.P.No.17188 of 2001 it is Rs.10,76,000/-. The orders further state that the petitioners are liable to pay difference in costs if any for the land later consequent on the finalisation of the land cost. The petitioners were directed to pay a sum of Rs.2,31,800/- and Rs.4,60,400/- respectively towards the initial deposit within a period of 30 days, besides executing a lease-cum-sale agreement. The petitioners have alleged that they have complied with the terms and conditions by making the initial deposits as required, and the offers of the petitioners were accepted by the Housing Board, and allotments were made thereafter and possession handed over to them.
4. It is alleged that subsequently, the Government issued G.O.Ms.No.29 dated 22.01.2001 giving certain concessions foregoing certain interest amounts on the houses already constructed. The petitioners wanted to get the benefit of the aforesaid G.O and requested for reduction of the cost of the houses allotted to them. However, the stand of the respondents was that the aforesaid G.O applies to such of those houses which remained unsold as on 31.12.2000. Since the houses were allotted to the petitioners prior to coming into force of the said G.O, and the petitioners have remitted the initial deposits and taken possession of the houses, the prayer of the appellants for reduction of interest was rejected. Aggrieved the petitioners filed the writ petitions.
5. We have carefully perused the G.O.Ms.No.29 dated 22.01.2001. It has been stated therein: -
“ The houses constructed before 30.06.2000 and remained unsold till 31.12.2000, it has been decided to waive interest in respect of amount payable by allottees and the same can be sold at the revised price”
Thus, to get the benefit of the aforesaid G.O, the petitioners have to satisfy the following conditions:
(i)The houses were constructed before 30.06.2000, and
(ii)It remained unsold till 31.12.2000
6. In the notice dated 17.4.2001 issued by the petitioners’ advocate it has been stated that the houses were constructed in the year 1995-96. Thus, the first condition, as mentioned in G.O dated 22.01.2001 i.e., the houses should be constructed before 30.06.2000, is satisfied.
7. In paragraph-4 of the petitioners’ affidavit filed in support of the writ petitions, it is stated: -
“I state that I was asked to execute a lease cum sale agreement which I have done. As such the house is presently in my possession on lessee and sale will be completed after payment of final price to be fixed by the respondents.”
8. It appears that the writ petitions have been dismissed by the learned single Judge by the impugned order without calling for the counter affidavits of the respondents, although the learned counsel for the Housing Board was heard. The learned single Judge has observed in the impugned order: -
“ The question of unsold houses will not apply to the case of the petitioners since the houses allotted to them have already been sold consequent on the applications made by the petitioners and the orders of allotment passed in their favour and also the execution of the lease-cum-sale agreement. Petitioners have also paid the initial deposit amounts as required by Boa
