Madras High Court
Meenakshi Apartments, Unit Of Mig. ... vs The Tamil Nadu Housing Board on 24 August, 1992
Equivalent citations: (1993)1MLJ161
ORDER Srinivasan, J.
1. In these writ petitions, the petitioners have prayed for issue of a writ of mandamus forbearing the respondents from recovering or enforcing the demand towards alleged difference by way of final cost and tentative cost of M.I.G. flats with respect to the members of the petitioner's associations whose names are set out in the schedules to the petitions. The members of the associations were allotted middle income group flats in 1979-80. With respect to the petitioner association in W.P. No. 7061 of 1986 the allotment letter was issued on 23.3.1980. Tentative cost was fixed at Rs. 42,200 for ground floor and first floor and Rs. 40,100 for the second floor. Clause 9 of the letter which is the crucial clause reads thus:
Final cost of the flat will be intimated within a period of 3 years. The difference of cost if any is to be paid in one lump sum or in monthly instalment from the beginning.
It is only in 1986 the respondents demanded additional payment from the petitioners on the footing that final cost is fixed at a higher rate. Difference varies from Rs. 6,900 to Rs. 14,300 per flat. Aggrieved by the same, the petitioners have preferred these writ petitions.
2. In a similar case, this Court held in S.A. No. 83 of 1982 by judgment dated 20.8.1982 that the clause fixing a period for determination of the final cost is a clause of limitation and after the expiry of the said period it is not open to the respondents to fix the final cost. However, it was held in the case that the respondents could fix within a reasonable time that portion of the enhancement in the sale value in so far as it relates to excess compensation awarded for the land owners under the acquisition proceedings.
3. The said judgment was affirmed on appeal by the Supreme Court in C.A. No. 3002 of 1983. The Apex Court has accepted the construction put upon the clause by this Court and held that after expiry of the period mentioned in the clause it is not open to the respondents to fix the final cost and thereby increase the cost payable by the allottees.
4. In W.P. Nos. 4527 and 7642 etc., of 1984 S. Ramalingam, J., held on 7.2.1989 that after the expiry of the period of limitation set out in similar clauses it is not open to the respondents to increase the cost under the guise of fixing the final cost. That judgment was affirmed on appeal by a Division Bench of this Court on 16.7.1990 in W.A. Nos. 460 to 464 of 1990. In W.P. No. 1441 of 1989 Justice Raju has taken a similar view in his judgment dated 21.2.1992.
5. According to learned Counsel for the respondents the aforesaid judgments would not apply to these cases and the matter would be governed by the judgment of Justice Raju sitting singly in W.P. Nos. 9603 and 9604 of 1990. On a perusal of the said judgment, it is seen that in those cases there was no clause fixing the period of limitation. The terms of contracts were also in dispute and the learned Judge held that the remedy of the parties was to go before a civil court in a civil suit and agitate their claims. On that footing, the writ petitions were dismissed.
6. I am of the view that the judgment in W.P. Nos. 9603 and 9604 of 1990 has no bearing on this case. In the present case there is a specific clause fixing a period of limitation of three years. Hence, the reasoning in that judgment will not apply and this will be governed by other judgments already referred to by me.
7. This is not case in which a direction similar to that given by Justice Balasubramanyam in S.A. No. 83 of 1982 can be given. It is specifically alleged in the affidavit filed in support of the petitions that the land cost was already fixed as the acquisition proceedings were over even before 1972. In paragraph 7 of the affidavit, it is alleged that there has been no increase in land acquisition proceedings compensation after 1975. Consequently, the respondents cannot claim on the footing that they had to pay more money by way of compensation to the owners of land in the acquisition proceedings. The respondents have filed a counter affidavit only today, that is after a period of six years since the filing of the writ petition. In the long counter affidavit running to 11 pages no particulars are given with regard to necessity for increase in the final cost. Nothing has been stated in the affidavit as to how final cost is worked out by the respondents in this case. It is generally alleged that final cost is liable to differ from the initial cost on account of escalation and other charges which are increasing considerably every year and inevitable reasons like the cost of development charges, tender excess etc. It is also stated that the delay in fixing the cost is due to administrative reasons and the sanction of the board has to be obtained for fixing the final cost. I do not accept the explanation as a proper ground for the inordinate delay in fixing the final cost. The clause in the contract prescribes a period of three years. The final cost is determined only after a period of six years in this case and communicated to the allottees. In the circumstances, I hold that the respondents are not entitled to make any demand over and above the cost already fixed in the contract as the respondents are not entitled to fix the final cost beyond the period of limitation prescribed in the contract.
8. It is stated in the counter affidavit that among the members of the petitioners' associations 33 allottees have complied with the demand issued to them and they have also remitted the amount demanded and obtained sale deeds in their favour since 5.4.1989 till date without any reservation whatsoever. It is further stated that five allottees have remitted the difference of cost and applied for issuance of sale deed and the sale deeds will be issued to them within two or three weeks depending upon the exigencies of time. A list is attached to the counter affidavit. It is seen therefrom that Nos. 1 to 10 in the list relate to some of the petitioners in W.P. No. 7064 of 1986; Nos. 11 to 15 and 17 relate to some of the petitioners in W.P. No. 7061 of 1986. Though No. 16 mentions the flat No. A-12/ 3 one of the flats concerned in W.P. No. 7061 of 1986, the name of the allottee differs. Nos. 18 to 23 relate to some of the petitioners in W.P. No. 7063 of 1986. Nos. 28 to 31 and 33 relate to some of the petitioners in W.P. No. 7062 of 1986. The flats mentioned in other numbers are not found in any of the writ petitions.
9. The copy of the counter affidavit has been served on the counsel for the petitioners only today. He is not in a position to say whether the persons who have remitted the difference as per the demands made by them have done so voluntarily without any reservation whatsoever. Assuming that the statement made in the counter affidavit is correct, I am of the view that the following course will meet the ends of justice. If the persons who have remitted the amounts demanded are taking a stand that they did not make payments voluntarily and made payments under protest and they will be entitled to the benefit of the order in these writ petitions and claim a refund of the amounts paid by them, it is for them to agitate their rights in an appropriate proceedings in a civil suit and establish the same. With this liberty, the writ petitions are allowed in so far as the petitioners listed in the schedules to the writ petitions are concerned excepting the persons who are found in the list attached to the counter filed by the respondents today under Nos. 1 to 15,16 to 23,28 to 31 and 33. The respondents shall not enforce their demands for any payment towards the cost, apart from the amounts already received by them from the petitioners referred to above. The respondents should execute the sale deeds to the petitioners within a reasonably time say, within three months from this date, provided other formalities required by the rules are complied with. There will be no order as to costs.