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2011 Supreme(Mad) 4720
High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R. BANUMATHI & THE HONOURABLE MS. JUSTICE R. MALA
The Tamil Nadu Housing Board, rep. by its Managing Director & Others
Versus
Nolambur Residents Welfare Association, rep. by its President N. Gangadharan & Others
O.S.A.No.252 of 2010 & W.P.No.9768 of 2010
Decided On :Decided on : 10-12-2011
For the Appellants:Gomathi Nayagam, Addl. Advocate General, V. Ananda Moorthy, Advocate.
For the Respondents - K.M. Vijayan, Sr. Counsel, B. Harikrishnan, Advocate.
Non-compliance of mandatory requirement of Section 138 of Tamil Nadu Housing Board Act is fatal to the plaintiff's case and the suit is not maintainable.
Headnote:
Tamil Nadu Housing Board (TNHB) - Nolambur Neighbourhood Phase -I and II Scheme - Allotment of Plots - Fixation of Final Price - Challenge by Allottees Association - Maintainability of Suit - Non-Compliance of Section 138 of TNHB Act - Clubbing of Different Causes of Action - Joinder of Parties - Relief of Declaration without Further Relief - Terms and Conditions of Allotment/Lease cum Sale Agreement - Final Price Fixation - Calculation of Final Price - Capitalisation of Interest - Limitation - Writ Petition for Execution of Sale Deeds - Maintainability.
Fact of the Case:
Tamil Nadu Housing Board (TNHB) floated Nolambur Neighbourhood Phase -I and II Scheme. In 1988, TNHB issued notification inviting applications for allotment of Plots. After conducting lot, regular allotment orders were issued to all the selected applicants. At the time of allotment, cost of the Plot was tentatively worked out to Rs.80,000/- per ground and in the allotment order, it has been mentioned that such tentative price is subject to revision on account of the anticipated increase of the land cost and finalisation of development costs, provision of amenities etc. Allottees have also entered into Lease-cum-Sale Agreement for the allotment and after paying the monthly instalments took over the Plot and also undertaking to pay the final price. In the impugned Proceedings No.S4/45202/95 dated 19.04.1996, final price was fixed at Rs.1,99,000/-per ground as on 31.03.1996 and the same is applicable to the allottees to whom the allotment was made up to 1989-90. The price was fixed for allotments made from 1990-91 to 1995-96 as per the statement enclosed thereon. Pursuant to the Proceedings of the Managing Director of TNHB and fixing the final price, demand notice was sent to the individual allottees. Thereafter, allottees have formed an Association and instead of challenging the individual demand notices, Plaintiff Association has filed the suit challenging only the Proceedings of the Managing Director fixing the final price at Rs.1,99,000/-as on 31.03.1996 for the allotments made up to 1989-90.
Finding of the Court:
1. Non-Compliance of Section 138 of TNHB Act: Suit is not maintainable due to non-compliance of mandatory requirement of Section 138 of Tamil Nadu Housing Board Act, which requires issuance of notice before filing suit against the Board. 2. Clubbing of Different Causes of Action: Suit is bad for misjoinder of causes of action as different causes of action of individual allottees were clubbed together and filed by the Association. 3. Relief of Declaration without Further Relief: Plaintiff Association is not entitled to the discretionary relief of declaration, having omitted to ask for further relief of getting the sale deed executed. 4. Terms and Conditions of Allotment/Lease cum Sale Agreement: Allottees are bound by the terms and conditions of the allotment/L.C.S. Agreement, including the agreement to pay the final price as fixed by the Managing Director. 5. Calculation of Final Price: The learned single judge erred in going into the minute details of expenditure and calculation of final price, as the Managing Director has the expertise and authority to fix the final price. 6. Capitalisation of Interest: Allottees are liable to pay interest, including the capitalisation of interest, as per the terms and conditions of the allotment and L.C.S. Agreement. 7. Limitation: The issue of limitation was not properly addressed in the trial court and hence, the court does not decide on the limitation aspect. 8. Writ Petition for Execution of Sale Deeds: Writ petition seeking direction to execute sale deeds at the tentative price is not maintainable as it would violate the agreed terms and conditions of allotment and L.C.S. Agreement.
Issues: 1. Whether the suit filed by the plaintiff Association clubbing the causes of action of all its members is maintainable? 2. Whether the suit filed seeking declaration that Ex.P.21 -proceedings of the Managing Director of Tamil Nadu Housing Board in S.4/45202/95 dated 19.4.1996 is null and void without seeking for further relief of obtaining sale deeds in the individual names of the members of the plaintiff Association is maintainable? 3. Whether the allottees, having agreed to pay the final price both in the agreement as well as in the Lease cum Sale agreement, can turn round and challenge the fixation of final price? 4. Whether the learned single judge was right in going into the calculation and whether the finding of the learned single judge was right in saying that the final price fixed in the impugned proceedings is excessive?
Ratio Decidendi: 1. Non-compliance of Section 138 of TNHB Act is fatal to the plaintiff's case as it is a mandatory requirement for filing suit against the Board. 2. Clubbing of different causes of action is not permissible and the suit is bad for misjoinder of causes of action. 3. Plaintiff Association is not entitled to discretionary relief of declaration without seeking further relief of getting the sale deed executed. 4. Allottees are bound by the terms and conditions of the allotment/L.C.S. Agreement, including the agreement to pay the final price as fixed by the Managing Director. 5. The Managing Director has the expertise and authority to fix the final price, and the court should not interfere with the calculation of final price. 6. Allottees are liable to pay interest, including the capitalisation of interest, as per the terms and conditions of the allotment and L.C.S. Agreement. 7. Writ petition seeking direction to execute sale deeds at the tentative price is not maintainable as it would violate the agreed terms and conditions of allotment and L.C.S. Agreement.
Final Decision: The Original Side Appeal No.252 of 2010 is allowed with costs throughout. W.P.No.9768 of 2010 is dismissed.
R.BANUMATHI,J.
1. The Original Side Appeal arises out of the decree and judgment dated 25.09.2008 in C.S.No.783 of 2000 in and by which the learned single Judge declared the Proceedings of the Managing Director of Tamil Nadu Housing Board in No.S4/45202/95 dated 19.04.1996 fixing the final cost to the allotments made in favour of members of the Plaintiff Association as null and void and also granting permanent injunction restraining the defendants from demanding the final cost as per the said proceedings.
2. After the disposal of the suit, the Plaintiff Association had filed writ petition -W.P.No.9768 of 2010 seeking for a writ of mandamus to direct the Tamil Nadu Housing Board to issue sale deeds in favour of the members of the Plaintiff Association. On being stated by the respondent/plaintiff, the Writ Petition was posted along with the Original Side Appeal and heard together. By consent of appellants and respondent, both the appeal and writ petition are disposed of by this common judgment.
3. Factual background in nutshell:-
Tamil Nadu Housing Board [TNHB] floated Nolambur Neighbourhood Phase -I and II Scheme. In the month of January 1988, TNHB issued notification inviting applications from the public for allotment of Plots at Nolambur. After conducting lot, regular allotment orders were issued to all the selected applicants in their respective categories HIG-I; HIG-II; MIG; LIG-I and LIG-II. At the time of allotment, cost of the Plot was tentatively worked out to Rs.80,000/- per ground and in the allotment order, it has been mentioned that such tentative price is subject to revision on account of the anticipated increase of the land cost and finalisation of development costs, provision of amenities etc. In the said order, it was also informed that the final price of the site due to the increased cost of development charges and provision of amenities will be determined only after all the suits filed for the determination of the the Land Acquisition Cases are finally settled and after the cost of amenities, development charges etc. are finalised. The allottees have also entered into Lease-cum-Sale Agreement for the allotment and after paying the monthly instalments took over the Plot and also undertaking to pay the final price. In the said Lease-cum-Sale Agreement, a clause was stipulated incorporating condition Nos.5, 6 and 9 regarding payment of final price. In the impugned Proceedings No.S4/45202/95 dated 19.04.1996, final price was fixed at Rs.1,99,000/-per ground as on 31.03.1996 and the same is applicable to the allottees to whom the allotment was made up to 1989
90. The price was fixed for allotments made from 1990-91 to 1995-96 as per the statement enclosed thereon. Pursuant to the Proceedings of the Managing Director of TNHB and fixing the final price, demand notice was sent to the individual allottees. Thereafter, allottees have formed an Association and instead of challenging the individual demand notices, Plaintiff Association has filed the suit challenging only the Proceedings of the Managing Director fixing the final price at Rs.1,99,000/-as on 31.03.1996 for the allotments made up to 1989-90.
4. Briefly stated case of Plaintiff is as follows:-
Pursuant to the notification, members of Plaintiff Association applied for allotment and some of the allottees have paid the entire cost in lumpsum and some of them opted for payment by instalments. Allottees have paid the entire tentative cost in one lumpsum or by instalments and they were under the impression that there will not be any further demand of cost from TNHB. But to the surprise and shock of the allottees, 3rd Defendant had sent a communication dated 31.05.1996 under various letters informing the allottees including the members of Plaintiff Association stating that final cost of the land is arrived at Rs.1,99,000/- per ground for the allottes upto 1988-89 as on 31.3.1996 and that they are liable to pay the differential cost either in one lumps
