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2011 DIGILAW 354 (MAD)

S. Muthiah v. The Chairman, Slum Clearance Board

2011-01-24

P.JYOTHIMANI

body2011
JUDGMENT :- 1. The Writ Petition is directed against the order of the First Respondent, the Chairman, Tamil Nadu Slum Clearance Board, Chennai, by which the representation of the Petitioner dated 31.1.2008, requesting for execution of Sale Deed in respect of Plot No.20, Bharathipuram, Chennai came to be rejected on the ground that the said land is a vacant land and no school has been conducted. 2. It is stated that out of a large extent of land transferred by the Corporation of Chennai, the Second Respondent herein to the First Respondent, Tamil Nadu Slum Clearance Board has identified Plot No.20, Bharathipuram, Shenoy Nagar, Chennai-30, as school area. It is stated that the Petitioner applied for allotment of the land for running a school in the year 1996 and the First Respondent by order dated 28.3.1996 allotted the Plot No.20 which is of an extent of 1009 sq.metres at Bharathipuram, Shenoynagar, Chennai-30 at a cost of Rs.2,01,800/-. (a) It is stated that the Petitioner paid the entire amount and took possession of entire land on 29.3.1996 and thereafter, on 3.6.1996 the First Respondent unilaterally cancelled the order and in W.P.No.7902 of 2006 that cancellation order was set aside by this Court by order dated 11.2.2204. (b) It is stated that in the meantime, the Corporation put up ‘Sathunavukoodam’ (Noon Meal Centre) in Plot No.20. It is stated that the First Respondent requested the Petitioner to accept the remaining 510 sq.metres and accordingly, a sub-division plan was sent to the Corporation on 5.11.2004, excluding the portion in which the Corporation has put up the Sathunavukoodam, for approval of remaining 510 sq.metres in the said site in Plot No.20 allotted for the Petitioner and the Petitioner paid all the charges relating to sub-division and the sub-divided plot was approved by the Corporation on 22.12.2004. (c) It was on 21.2.2005, the First Respondent re-allotted the lesser extent of 510 sq.metres in T.S. No.2 part, Block No.16, Bharathipuram, 1st Street and a Lease-cum-sale Agreement was entered into on 22.2.2005. Since the Petitioner paid full amount in respect of total area of 1009 sq. metres, it is stated that the First Respondent accepted to adjust the amount and agreed to execute the Sale Deed. Since the Petitioner paid full amount in respect of total area of 1009 sq. metres, it is stated that the First Respondent accepted to adjust the amount and agreed to execute the Sale Deed. (d) It is stated that the First Respondent also gave no objection on 21.2.2005 for putting up a construction and for getting electricity connection and for sewerage connection apart from No Objection Certificate dated 01.03.2005, for raising loan on the security of the property for construction purposes. (e) It is stated that based on the No Objection Certificates, the Petitioner applied to the Corporation for sanction of plan in the year 2006 and also applied for loan from REPCO Bank and obtained Rs.97 lakhs. It is stated that based on the No Objection Certificate, the Petitioner created a mortgage over the property on 23.10.2006 authorising the First Respondent to deliver the original Sale Deed to REPCO Bank. It is stated that the approval of building plan by the Corporation was under consideration. (f) It is the case of the Petitioner that the Corporation, the Second Respondent, in its proceedings dated 30.9.2004 handed over the legal possession of nearly 137 grounds and 156 sq.ft. to the first Respondent on 21.11.2006, which included the sub-divided plot in respect of which actually the possession was given to the Petitioner in 1996. In spite of the fact that REPCO Bank wrote a letter to the First Respondent, the First Respondent failed to execute the Sale Deed and hand over the same. Since nothing has happened, the Petitioner obtained information under the Right to Information Act. It was thereafter, under the impugned order, the First Respondent was informed to have refused to execute the Sale Deed on the ground that the plot continued to remain vacant and school building has yet to come up. 3. The impugned order has been challenged on the ground that the order is hit by promissory estoppels tainted with colorable exercise of powers and unconstitutional exceeding the statutory powers and it goes beyond the terms of agreement. 4. In the Counter Affidavit filed by the First Respondent it is admitted that originally Plot No.20, Bharathipuram, Chennai was allotted to the Petitioner which was cancelled, against which the Petitioner moved this Court in Writ Petition and after disposal of the Writ Petition, the Petitioner’s representation was considered. 4. In the Counter Affidavit filed by the First Respondent it is admitted that originally Plot No.20, Bharathipuram, Chennai was allotted to the Petitioner which was cancelled, against which the Petitioner moved this Court in Writ Petition and after disposal of the Writ Petition, the Petitioner’s representation was considered. (a) It is stated that it was found that out of total extent of 1090 sq.mts. of land the Corporation School was constructed in 580 sq.mts. and the same was functioning and only the remaining 510 sq.mts. was vacant and therefore, it was decided to have sub-division of the plot and a proposal was sent to the Corporation for approval and the Corporation on 22.12.2004 approved the proposal for subdivision and assigned Plot No.20-A, the portion in occupation of the Corporation viz. 580 sq.mts. and Plot No.20 was retained in respect of remaining vacant land to the extent of 510 sq.mts. (b) It is stated that thereafter, the said 510 sq.mts. was allotted to the Petitioner who paid Rs.2,04,000/- at the rate of Rs.400/- per sq.mt. and No Objection certificate was also issued but the No Objection Certificate was issued for obtaining Bank loan from the Bank of Baroda and that was used by the Petitioner for obtaining loan from REPCO Bank to the extent of Rs.97 lakhs. (c) It is stated that the representation of the Petitioner for grant of Sale Deed was rejected on the ground that Plot No.20 allotted to the Petitioner remained vacant and no school was functioning. It is stated that on field inspection, it was found that Plot No.20 was also in possession of Corporation Authorities and the Corporation compounded both Plot Nos.20-A and 20 and the Petitioner was not in possession and there was no school of the Petitioner functioning in Plot No.20 and therefore, the impugned order was passed. (d) It is stated that Plot No.20 allotted to the Petitioner was used by the Corporation school which is functioning in Plot No.20-A for the purpose of playground and since the Corporation used it for school and playground which is also a public purpose, the First Respondent reconveyed the portion to the Corporation and the land is in possession of the Corporation. (e) It is stated that in respect of unlawful obtaining of loan from REPCO Bank instead of from Bank of Baroda for which No Objection Certificate was obtained, a CBI case was registered against the Petitioner and the documents were handed over to the investigating department. 5. In the Counter Affidavit filed by the Second Respondent which was subsequently impleaded as party, while it is admitted that when the Corporation sanctioned the sub-division, the same was done erroneously and the sub-division was subsequently cancelled, it is stated that the Corporation is in possession of the entire premises of Plot No.20 in which the school and a Noon Meal Centre and playground are situate. It is stated that the Corporation was the original owner of the entire property and that was handed over to the First Respondent for development of the area and inasmuch as the said portion was not developed as a school, the Corporation itself took over the same. 6. It is on record that originally the Plot No.20 was allotted to the Petitioner, which was to the extent of 1009 sq.mts. and that was as per the order of the First Respondent made in March, 1996 for a consideration of Rs.2,011,800/- based on which the Petitioner paid the initial amount of Rs.20,180/- and the balance amount had to be paid within 20 years. Subsequently, having realized that without obtaining permission from Chennai Metropolitan Development Authority, such allotment was made, the First Respondent cancelled the allotment on 3.6.1996 and that was challenged by the Petitioner in W.P.No.7902 of 1996. While admitting the Writ Petition, this Court granted an order of injunction on 26.6.1996 against the First Respondent from allotting the land to any third party and ultimately, the Writ Petition came to be disposed of by a final order dated 11.2.2004. By virtue of the above said order, the operative portion of which is as follows: “5. In these circumstances, the impugned order is quashed. But, however, there cannot be a mandamus as prayed for by the Petitioner. The Petitioner shall treat the Counter filed in this Writ Petition as notice to it and give its representation as to why the allotment could not be cancelled, within four weeks from the date of receipt of a copy of this order. But, however, there cannot be a mandamus as prayed for by the Petitioner. The Petitioner shall treat the Counter filed in this Writ Petition as notice to it and give its representation as to why the allotment could not be cancelled, within four weeks from the date of receipt of a copy of this order. The Respondent shall thereafter consider the representation of the Petitioner and deal with the same in accordance with law.” 7. Even though the impugned order of cancellation was set aside, the further prayer to forbear the First Respondent from interfering with petitioner’s possession was not granted. However, it is stated that the Counter Affidavit filed by the First Respondent should be treated as show cause notice as to why the allotment should not be cancelled and the Petitioner should give his representation. It is seen that thereafter, the First Respondent having inspected the place, found that the Second Respondent Corporation has been running a school in a portion of the said Plot No.20 in and extent of 580 sq.mts. and only 510 sq.mts. was remaining vacant and therefore requested the Corporation to approve the sub-division and as per the plan, the Corporation also approved the sub-division in the order dated 22.12.2004. Based on that, the First Respondent took possession and the same was communicated to the Petitioner on 4.2.2005 agreeing to give 510 sq.mts. to the Petitioner at the rate Rs.400/- per sq.mt. Accordingly, the Petitioner paid the entire sale consideration of Rs.2,04,000/- as it is seen in the receipt issued by the First Respondent on 15.2.2005 and the receipt of the amount has not been disputed as it is seen in the Counter Affidavit filed by the First Respondent. 8. In fact, the First Respondent also passed orders on 16.2.2005 stating that new Plot No.20 to the extent of 510 sq. mts. should be given on Lease-cum-sale basis to the Petitioner based on which No Objection Certificate was issued in favour of the Petitioner. The lease-cum-sale Agreement was also entered on 22.2.2005. The Corporation also issued the Land Transfer Certificate in respect of the above said portion under communication dated 29.11.2006 and the First Respondent informed the Petitioner that for the purpose of executing a Sale Deed, steps would be taken immediately after transfer of property was effected by the Corporation in the name of the First Respondent. The Corporation also issued the Land Transfer Certificate in respect of the above said portion under communication dated 29.11.2006 and the First Respondent informed the Petitioner that for the purpose of executing a Sale Deed, steps would be taken immediately after transfer of property was effected by the Corporation in the name of the First Respondent. In fact, the First Respondent in the order dated 26.4.2007 also gave No Objection Certificate for the purpose of putting up a construction. Even though there appears to be some steps taken by the Petitioner for putting up construction, on fact, it is clear that such construction has not been put up and the Corporation has taken steps to occupy the same, thereby taking possession of the entire land. It appears that there was some Criminal Complaint also on the basis that the Petitioner obtained loan from a bank other than the one for which no objection certificate was obtained and ultimately, the impugned order came to be passed in 2008, which was received by the Petitioner under Right to Information Act. 9. A reference to the document by which the Corporation transferred larger extent to the First Respondent in the year 2004 shows that as per the scheme, the portion allotted for the purpose of School must be given by way of gift to the Corporation and wherever Corporation schools, dispensaries or public toilets are available, they should continue to remain. It is seen that the Corporation which had accepted the sub-division, realized later that a Corporation School itself was situate in the said plot No.20 and therefore, the Sub-division was stated to be given by mistake. 10. Be that as it may, as submitted by the learned Counsel for the Petitioner, the entire conduct of the First Respondent appears to be not only clumsy but also not with upright intention. Having allotted originally a larger extent and realizing the mistake, subsequently allotted a lesser extent of 510 sq.mts. and having received the entire sale consideration, it is not known as to how the First Respondent can now take a stand as if the Petitioner has not put up any school building. Having allotted originally a larger extent and realizing the mistake, subsequently allotted a lesser extent of 510 sq.mts. and having received the entire sale consideration, it is not known as to how the First Respondent can now take a stand as if the Petitioner has not put up any school building. It is also a question to be raised at this stage as to how it is possible for the Petitioner to put up a school building without having any document executed in a proper manner and in the meantime, the Second Respondent-Corporation has put up a compound thereby preventing the Petitioner even from entering into the land. 11. It is also important to note that when the Corporation is admittedly running a school in a portion of Plot No.20 in an extent of 580 sq.mts., and the remaining extent of 510 sq.mts. stated to have been allotted to the Petitioner has been kept vacant and used as Corporation school playground, how it is possible for the Petitioner to have another school in the area. There appears to be a gross mistake on the side of the First Respondent as well as the Corporation and the entire issue has not been dealt with by both the Public Authorities properly, resulting in detrimental loss to the Petitioner who has been made to believe that he would continue in possession in the land to construct a school. Thus, the Petitioner has spent a huge amount of about Rs.97 lakhs by way of loan from a bank for the purpose of putting up a School building based on the No Objection Certificate issued by the Respondent-Board and with fond hope of constructing a school. This conduct has to be clearly considered as a patent deception by a public authority on a citizen. 12. In a similar circumstance, while applying the Principle of Legitimate Expectation on the conduct of statutory bodies and Government authorities, when the authorities refused to fulfill the promise, the Supreme court held that suitable orders can be passed subject to the condition as to whether public interest is involved; whether legitimate expectation of individual may go against the public interest. That was in Hira Tikko v. Union Territory, Chandigarh and others, 2004 (6) SCC 765, wherein the Supreme Court explained the Legitimate Expectation and Promissory Estoppel as follows: “20. That was in Hira Tikko v. Union Territory, Chandigarh and others, 2004 (6) SCC 765, wherein the Supreme Court explained the Legitimate Expectation and Promissory Estoppel as follows: “20. The learned Senior Counsel then made some attempts to rely on the Doctrines of “promissory estoppels” and “legitimate expectation”. The Doctrine of “legitimate expectation” has developed as a Principle of Reasonableness and Fairness and is used against statutory bodies and Government Authorities on whose representations or promises, parties or citizens act and some detrimental consequences ensue because of refusal of authorities to fulfill their promises or honour their commitments. The argument under the label of “estoppels” and ”legitimate expectation” are substantially the same. The Administration herein no doubt is guilty of gross mistake in including in its development scheme, a portion of land covered by the forest and land with restrictions under the Aircraft Act. A vital mistake has been committed by the Chandigarh Administration in overlooking the Notification reserving land under the Forest Act and the restrictions imposed under the Aircraft Act, but overriding public interest outweighs the obligation of a promise or representation made on behalf of the Administration. Where public interest is likely to be harmed, neither the Doctrine of “legitimate expectation” nor “estoppels” can be allowed to be pressed into service by any citizen against the State authorities. In Jit Ram Shiv Kumar v. State of Haryana, a Two-Judge Bench of this Court by explaining and distinguishing Union of India v. Anglo Afghan Agencies and Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., observed this: (SCC p.23, para 16) “16. It is only in public interest that it is recognized that an authority acting on behalf of the Government or by virtue of statutory powers cannot exceed his authority. Rule of ultra vires will become applicable when he exceeds his authority and the Government would not be bound by such action. It is only in public interest that it is recognized that an authority acting on behalf of the Government or by virtue of statutory powers cannot exceed his authority. Rule of ultra vires will become applicable when he exceeds his authority and the Government would not be bound by such action. Any person who enters into an arrangement with the Government has to ascertain and satisfy himself that the authority who purports to act for the Government, acts within the scope of his authority and cannot urge that the Government is in the position of any other litigant liable to be charged with liability.” However, the Supreme court held that there cannot be a direction by the Court against Public Authorities to allot some Plot if public interest is involved as that would amount to breach of statutory provisions, The relevant portion is as follows: “24. The allottees of the Plots are, no doubt, faced with an uncertain situation will loss already caused to them due to negligence and mistake on the part of the Planning authorities of the Chandigarh Administration. In preparing the development scheme, the existing Notification reserving major part of land as forest under the Indian Forest Act and restriction on construction in the periphery of 900 metres from the air force base under the Aircraft Act were overlooked. As we have held above, on a representation that the land is available for allotment of industrial Plots, the allottees staked their money and plans for setting up their industries. The representations made to them by the Planning Authorities have turned out to be misleading as a substantial part of the land could not have been included in the development scheme. The allottees paid price for the Plots and incurred expenses in preparing their industrial projects. We have held above that the Doctrines of “legitimate expectation” and “estoppels” cannot be applied against the Administration to compel it to allot the original Plots because that would be permitting violation of statutes intended to conserve forest and restrictions imposed in the interests of general public and security of nation under the Aircraft Act. The Doctrine of “estoppels” cannot, therefore, be allowed to be urged against the Administration. This Court cannot direct the Administration to commit breach of statutory provisions and thus harm general public interests. The Doctrine of “estoppels” cannot, therefore, be allowed to be urged against the Administration. This Court cannot direct the Administration to commit breach of statutory provisions and thus harm general public interests. De Smith, Woolf and Jowell in their authoritative book Judicial Review of Administrative Action (5th Edn., at p.565, para 13-028), have stated one of the Principles of Public Law Powers thus: “A public body with limited powers cannot bind itself to act outside of its authorized powers; and if it purports to do so it can repudiate its undertaking, for it cannot extend its powers by creating an estoppels”. 13. Under similar circumstances, when originally an allotment of Plot was made and later an alternative Plot was allotted which could not be granted due to impracticability of delivery, it was held that the request for alternative Plot must be considered in the same sector or in the near place on the original price. That was in Haryana Urban Development Authority v. Vijay Aggarwal. 2005 (9) SCC 446 , wherein the Supreme Court held as follows: “3. In this case the Respondent was allotted a Plot bearing No.19, Sector 12-A, Gurgaon, in the year 1986. The Respondent paid all dues. The Plot allotted turned out to be under litigation, thus, the complainant was not offered possession. The Complainant was then offered alternate Plot No. 30-P, Sector-9, Gurgaon, but a much higher price was claimed. The Respondent was not willing to pay the higher price and asked for allotment of an alternate Plot in the original Sector at the original price. This was not complied with, thus, the Respondent filed a Complaint. 4. On these facts, the District Forum directed that where the Applicants are not in a position to give possession of the Plot allotted they must give an alternate Plot at the original price. We are in full agreement with this view and hold that wherever a body like the Appellants is not in a position to deliver possession of the allotted Plot, they must offer an alternate Plot immediately at the same price. The alternate Plot must be in the same sector or near thereto.” 14. We are in full agreement with this view and hold that wherever a body like the Appellants is not in a position to deliver possession of the allotted Plot, they must offer an alternate Plot immediately at the same price. The alternate Plot must be in the same sector or near thereto.” 14. Considering the above circumstances and applying the dictum laid down by the Supreme Court to the facts of the present case, I am of the considered view that due to subsequent developments, especially taking note of the fact that the Corporation is running a school in the place allotted to the Petitioner and even in respect of subsequent allotment of vacant portion, that portion is stated to be used as playground by a Corporation School, even though the facts of the case warrant the Principles of Legitimate Expectation and Promissory Estoppel to be applied against the Respondents, since Public interest is involved, I am of the considered view that no useful purpose would be served by directing to allot and it would be more detrimental to the public interest if a direction is given to the Respondent-Board to handover the Plot to the Petitioner by removing the Corporation School/playground. 15. At the same time, it is not as if the Petitioner who has paid the entire sale amount and who is stated to have spent further amount by obtaining huge amount of loan from a Bank can be denied of any right being a citizen of this country who has legitimately made his Application for the purpose of running a school in the area. But for the public interest involved in this case, this Court would have directed the Respondents to pay heavy damages to the Petitioner to compensate the loss and hardship caused to him by virtue of the lethargic conduct of both the Respondents. 16. But for the public interest involved in this case, this Court would have directed the Respondents to pay heavy damages to the Petitioner to compensate the loss and hardship caused to him by virtue of the lethargic conduct of both the Respondents. 16. In such view of the matter, while I am not inclined to set aside the impugned order, there will be a direction against the First Respondent to consider the case of the Petitioner if a proper representation is made within a period of 10 days from the date of receipt of copy of this order for allotment of an alternative Plot at the same cost for the purpose of starting a school and such order shall be passed within a period of 12 weeks from the date of receipt of such representation. The Writ Petition is disposed of accordingly. No costs.