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Judgment
S. Jagadeesan, J.—The Petitioners are the allottees of plot Nos. 659-C and 660 in Vellore Neighbourhood Scheme, Phase II. These plots have been allotted to the Petitioners for the construction of the houses. Under the impugned proceedings dated 12.10.92, the 3rd Respondent cancelled the allotment in favour of both the Petitioners. The appeals preferred by them before the 1st Respondent were also dismissed by G.O.(D) No. 36, Housing and Urban Development (SC2(1) Department dated 22.2.95. Aggrieved by the same, the Petitioners have filed these writ petitions.
Mr. T.M. Hariharan. learned Counsel for the Petitioners contended that the allotment had been cancelled on the ground that the Petitioners are putting up construction in violation of the approved sanctioned plan. Now the Petitioners give an undertaking that they will construct the building in accordance with the sanctioned plan without any deviation, and as such the impugned order may be set aside.
On behalf of the Respondents it was contended that as per condition Nos. 10,11 and 12 of the lease-cum-sale agreement, the 3rd Respondent is empowered to cancel the allotments, if the allottees of the sites do not construct the building in accordance with the approved sanctioned plan and hence the impugned order is quite valid. The undertaking given by the Petitioners before this Court cannot be of any assistance to decide the merit or the legality of the impugned order.
I carefully considered the contentions of both the counsel. There is no dispute that both the Petitioners are the allottees of the sites on outright purchase. The entire sale consideration of the plot had been paid. The show cause notice of the 3rd Respondent dated 6.8.92 reads as follows:
Further, you are continuing the Construction work without adopting the approved sanctioned plan and the cantilever slab have been laid abutting the boundry of your neighbour. Finally you are requested to stop the above construction and to construct the building as per the sanctioned plan approved by the local body, failing which action will be taken to remove the above unauthorised construction as well as to cancel the allotment made in your favour for violating the conditions stipulated in the lease cum sale agreement?.
The order of cancellation passed by the 3rd Respondent dated 12.10.92 reads as follows:
I invite your attention to this office reference cited, wherein you have been issued a show cause notice as the construction under progress on plot No. 659C in Vellore neighbourhood Scheme, Phase II is in violation of the No objection Certificate of building plan BA. No. 75/90 dated 22.3.90. Moreover you have violated the condition Nos. 10,11 and 12 of the lease-cum-sale agreement executed by you with this office. But you have continued the construction work without adopting the plan recommended by Vellore Housing Unit. In your letter dated 21.8.1992 you have stated that your advocate''s reply may be treated as your reply may be treated as your reply. The advocate has been suitably replied by this office on 7.10.92. Further you have continued the construction without considering the show cause notices issued by this office thus violating the condition No. 12 of the lease-cum-sale agreement executed by you....
In both the writ petitions, the proceedings are almost identical. Both the show cause notice as well as the final order passed by the 3rd Respondent refer that the Petitioners continue to construct the building without adopting the sanctioned plan and hence the allotment was cancelled.
In order to appreciate the contention of the learned Counsel for the Petitioners as well as the reference made in the proceedings of the 3rd Respondent as to whether the 3rd Respondent is empowered to cancel the allotment under the conditions 10, 11 and 12 for any construction that is being put up in violation of the sanctioned plan. The said conditions are as follows:
The Lessee/purchaser shall conform to the condition stipulated in the annexure to this agreement while constructing, reconstructing, altering or adding to a building on the plot. The Lessee/Purchaser shall obtain the necessary licence from the Corporation of Madras or the concerned local authority for the construction of the building and he/she shall submit his/her application for obtaining licence for the construction reconstruction, addition or alteration of a building, through the Chairman, Tamil Nadu Housing Board.
The property shall not be put to any use except as residential quarters except with the consent in writing of the Lessee/Vendor.
On matters not specifically stipulated in these present, the Lessor/Vendor shall be entitled to give directions to the Lessee/purchaser which the Lessee/purchaser shall carry out and default in carrying out such direction will be breach of condition of these presents.
On my careful reading of the above conditions, I am of the view that the 3rd Respondent is not empowered to cancel the allotment on the ground that the allottee constructs the building in violation of the sanctioned plan. Condition No. 10 requires the allottee to commence the construction only after obtaining the licence from the appropriate authority. Condition No. 11 requires the allottee to use the site for residential quarters. Condition No. 12 deals with the breach of conditions. In the case on hand, it is not the case of the 3rd Respondent that the Petitioners have constructed the building without obtaining the sanctioned plan. As pointed out already, the show cause notice as well as the impugned order of cancellation is only on the basis that the Petitioners were not adopting the sanctioned plan while constructing the building. As the 3rd Respondent do not have any power or right to cancel the allotment for such violation, this Court is of the view that the impugned proceedings cannot be sustained and accordingly, the same are set aside and the writ petitions are allowed with costs of Rs. 1,000/- each.