C.K. Zacharias v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 6[TH] DAY OF JANUARY 2022 / 16TH POUSHA, 1943** ## **WP(C) NO. 11039 OF 2011** ## **PETITIONER/S:** C.K.ZACHARIAS, S/O C.G.KURIAN CHEENOTHUPARAMPIL HOUSE, PLOT NO.211-C,, KERALA STATE HOUSING BOARD COLONY,, GANDHI NAGAR, AMALAGIRI, KOTTAYAM-686 036. BY ADVS. SRI.PAUL JACOB SRI.ENOCH DAVID SIMON JOEL SRI.ROSHEN.D.ALEXANDER 1 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF HOUSING BOARD,, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,, PIN-695 001. 2 KERALA STATE HOUSING BOARD REPRESENTED BY THE ADMINKISTRATIVE OFFICER, 3RD FLOOR,, HSHB OFFICE COMPLEX, PANAMPILLY NAGAR,, KOCHI-682 036. 3 THE SECRETARY KERALA STATE HOUSING BOARD, HOUSING BOARD BUILDING,, THIRUVANANTHAPURAM-695 001. 4 THE EXECUTIVE ENGINEER, KERALA STATE HOUSING BOARD, KOTTAYAM DIVISION,, KANJIKUZHY, KOTTAYAM-686 004. BY ADVS. SRI.MANOJ RAMASWAMY SRI.GEORGE BOBAN, SC, K.S.H.B. SRI.K.DENNY DEVASSY, SC, K.S.H.B. ## **RESPONDENT/S:** ## **OTHER PRESENT:** SMT.VIDYA KURIAKOSE, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P.(C.) No. 11039 of 2011** **2** ## **P.V.KUNHIKRISHNAN, J** **---------------------------------W.P.(C) No. 11039 of 2011 ----------------------------------------------Dated this the 6[th] day of January, 2022** ## **JUDGMENT** Exhibit P8 communication issued by the 4[th] respondent requesting the petitioner to pay a certain additional amount for finalising the scheme account of Gandhinagar Housing Accommodation Scheme (Ghandhinager HAS) is challenged in this writ petition. The petitioner executed a deed of agreement with the Kerala State Housing Board as evident by Ext.P5 for purchasing plot No. 211(c) of Ghandhinager HAS and Ext.P5 was executed on 19.1.1990. The grievance of the petitioner is that even though the amount due as per Ext.P5 agreement is paid in full, the sale deed is not executed by the respondent. 2. Normally in contractual matters, this Court will not interfere invoking the powers under Article 226 of the **W.P.(C.) No. 11039 of 2011 3** Constitution of India. But in a similar circumstance, one Grace Joseph, another allottee of the same scheme approached this Court with almost similar prayers, and this Court was pleased to set aside the claim of the Housing Board for the enhanced amount in addition to the agreement amount. This judgment was reported as **Grace Joseph v. State of Kerala and others** [2006 (2) KLJ 577]. The above judgment was challenged before the Apex Court and the Apex Court was pleased to set aside the judgment of the Division Bench of this Court and remanded the matter to this Court for fresh consideration. After remand, this Court again considered the matter in detail and as per Ext.P11 judgment produced in this case, again vacated the additional demand of land cost claimed by the Housing Board. The petitioner is relying on Ext.P11 judgment. Since the issue raised in this writ petition is also similar to the case which leads to Ext.P11 judgment, this Court decided to consider this case also on merit. 3. The admitted facts are like this : The Kerala **W.P.(C.) No. 11039 of 2011 4** Housing Board framed a housing scheme known as 'Gandhi Nagar Housing Allottee Accommodation Scheme' at Kottayam and decided to acquire the land for that purpose. Three separate lands were acquired as per award No. 5/81 dated 25.11.1981, award No.2/82 dated 8.2.1982, and 1/83 dated 14.2.1983. The petitioner and her wife decided to purchase two house plots and Ext.P1 is the application for allotment of house plots submitted by the petitioner. The provisional allotment letter was issued to the petitioner for plot No.SP 211 and provisional allotment letter was issued to the wife of the petitioner as far as plot No.SP-212 is concerned. As per the agreement, 25% of the tentative value of the land in respect of SP-211 and SP-212 was remitted by the petitioner and his wife by 30.12.1987 itself. Subsequently, the petitioner and his wife submitted an application to club the above two plots and as per Ext.P3 dated 31.12.1988, the earlier allotment of plots Nos. 211 and 212 are cancelled and plot Nos. 211 and 212 were clubbed together as plot No.211-C and the same was allotted to the petitioner. Subsequently, the **W.P.(C.) No. 11039 of 2011 5** final allotment letter was issued for plot No.SP-211C on 19.11.1989. The possession of the land was handed over on 19.1.1990 and Ext.P5 sale agreement was also executed on the same date. According to the petitioner, the entire amount was paid as per the agreement before 2.3.1990. The petitioner purchased only a house plot as per the scheme and he constructed a residential house in that plot. He completed the construction of the residential plot in 1994 after availing of a loan and as evident by Ext.P7, the housing loan account of the petitioner was also settled. Thereafter, Ext.P8 demand notice was issued by the 3[rd] respondent directing the petitioner to deposit an amount of Rs.5,82,338/- on or before 30.09.2003. The petitioner submitted Ext.P9 reply to the 3[rd] respondent. Ext.P10 is also another representation from the petitioner to the respondents. Ext.P11 is the judgment in W.A. No.2481/2005 by which the additional demand of land cost claimed by the Housing Board from one Grace Joseph was vacated. The petitioner also claimed the same benefit. Hence, this writ petition is filed with the following prayers : **W.P.(C.) No. 11039 of 2011** **6** i. Issue a writ of certiorari or other appropriate writ, order or direction quashing Ext.P8. ii. Issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to transfer Plot No. 211(c) to the petitioner's name forthwith and execute proper sale deed forthwith. iii. Issue such other appropriate writ order or direction that may be deemed to be just and equitable in the facts and circumstances of the case. 4. Heard the learned counsel for the petitioner and the learned Standing Counsel for the Kerala State Housing Board. The counsel for the petitioner reiterated his contentions in the writ petition. The counsel submitted that in a similar situation, this Court vacated the additional claim from the Housing Board after executing the agreement for sale. The counsel takes me through the various clause in Ext.P5 agreement and also Ext.P11 judgment of this Court which was delivered after the remand of the case from the Apex Court, which admittedly became final. 5. On the other hand, the learned Standing Counsel takes me through the counter affidavit filed by the respondents and also specifically clauses 4,6, 10, and 11 in **W.P.(C.) No. 11039 of 2011 7** Ext.P5. The Standing Counsel submitted that in the light of the above clauses in Ext.P5 agreement, the claim in Ext.P8 is justifiable, and therefore, there is nothing to interfere with Ext.P8. 6. This Court considered the contentions of the petitioner and the respondents. The admitted case is that the petitioner purchased a house plot from the respondents for the construction of a residential house. Ext.P5 is the agreement executed by the petitioner with the respondents. The relevant clauses in Ext.P5 which are relied on by both sides are clauses 4 to 11. Clauses 4 to 11 in Ext.P5 are ## extracted hereunder : “4. The Tentative Land Value for the property is fixed at Rs.58115/50 including the tentative charges for service and other amenities. It is acknowledged by the Board that an amount of Rs.14,528.90 has been paid by the party of the second part, The balance amount of Rs.43,586.10 with interest at the rate of 15% shall be paid by the party of the second part in 36 equated instalments of Rs.1,511/- (Rupees one thousand five hundred and eleven only). The first instalment shall be paid on... 19.1.1990..... and subsequent instalments shall be paid on or before 10th day of every month. If the instalments are not paid on the due dates a penal interest at the rate of 18% shall also be paid by the party of the second part. **W.P.(C.) No. 11039 of 2011** **8** 5 . The party of the second part hereby agrees that the amount of Rs.14,528.90 already paid by him/her as per this agreement shall be held by the Board as security for the due performance of the contract made here in. All damages or compensation for breach of contract or for any loss or expense that the Board may be put to on connection with any legal proceedings that may be taken against the party of the second part shall be appropriated by the Board from and out of this security. 6. It is agreed that the Kerala State Housing Board shall be entitled to refix the final land value, and for service and other amenities of the property described in the schedule hereto, taking into account inter alia the enhanced compensation awarded by Courts and Tribunals, the cost incurred by the Board for prosecuting such proceedings in Courts and Tribunals, and also increased cost of development work and amenities undertaken with respect to the scheme after a final settlement of account in connection there with. It is agreed that the decision of the Board in fixing the revised price of each item of the property shall be conclusive and final. 7. It is expressly agreed between the parties hereto that after the finalisation of the land value and charges for service and other amenities by the Board the party of the second part shall pay the Board together with interest at 15% per annum, the difference between the tentative price fixed therefor and the price finally fixed by the Board within thirty days of the date of a registered notice demanding the payment thereof or in such quarterly installments over a period not exceeding two years to be determined by the Board. 8. It is agreed that the party of the second part shall be entitled to get a registered sale deed for conveyance of the property after payment of all **W.P.(C.) No. 11039 of 2011** **9** the amounts due under this indenture to the Board in full and after satisfying all the terms and conditions contained in this indenture and the provisions of the Kerala State Housing Board Act 1771. 9. It is agreed that all attendant expenses in connection with the execution and registration of the sale deed for the conveyance of the interest and title of the Board in the property decided in the schedule hereto, inclusive of the stamp duty and the registration charges for the same, shall be borne exclusively by the party of the second part. The party of the second part shall also bear all stamp duty including any penalty in connection with this indenture. 10. From the date of taking possession of the property the party of the second part shall pay all the rates, taxes, cesses, and other outgoings payable in respect of the property to the Government, Panchayath of Arpookara or to any other local authority or other tribunal. 11. It is agreed that if the party of the second part falls to incur the expenditure lawfully payable by his/her under these presents the Board shall be entitled to incur all or any of them but the Board shall incur those expenses only after giving the party of the second part one weeks notice in writing, the party of the second part shall also pay interest at 1.8% per annum to the Board on such payments and expenses incurred by the Board.” 7. It is an admitted fact that as per Ext.P5, the tentative value for the property is fixed as Rs.58,115.50/-. As per the memo filed by the Standing Counsel for respondents dated 19.11.2021, the instructions supplied by the **W.P.(C.) No. 11039 of 2011 10** respondents are produced. In the instructions, it is admitted that the petitioner paid the initial amount of Rs.14,528.90/-. It is also stated that the balance amount of the tentative land value of Rs.43,587 was also remitted by the petitioner. Thereafter, it is stated that there is a balance hire purchase amount due as on 31.10.2017 as Rs.16,244/-. It is the case of the respondents that as per Clauses 3 and 6 of the agreement executed by the petitioner with the respondents, the Board has the right to claim the additional amount towards development work and land value. It is stated that the development works include road work, drains, common water supply, area development etc. According to the respondents, the additional land value included compensation given to property owners from whom the land was acquired for the scheme. 8. The petitioner is challenging Ext.P8 by which an amount of Rs.5,82,338/- was claimed on 3 heads. The amount claimed as per Ext.P8 in 3 heads are extracted hereunder : The split up details shown below: **W.P.(C.) No. 11039 of 2011** **11** |1) Balance of difference in<br>Land value (with interest)|Rs. 70,067| |---|---| |2) H.P.balance|Rs. 8,859| |3) Additional Land value<br>(with addl. Devpt.)|Rs.5,03,412| |TOTAL|Rs.5,82,338/-| 9. The respondents are relying on clauses 4, 6, 10 and 11 of Ext.P5 to claim this additional amount. Clause 4 says that the tentative value for the property is fixed as Rs. 58,115.50/- and the repayment schedule is also mentioned in clause 4. Clause 6 says that the respondents shall be entitled to refix the final land value and for service and other amenities of the property described in the schedule hereto taking into account inter alia the enhanced compensation awarded by courts and tribunals, the cost incurred by the Board for prosecuting such proceedings in courts and tribunals and also increased cost of development work and amenities undertook with respect to the scheme after a final settlement of account in connection therewith. Therefore, as **W.P.(C.) No. 11039 of 2011 12** per clause 6 of Ext.P5, the respondents can refix the final land value and for service and other amenities of the properties described in the schedule taking into account inter alia the following : - 1) The enhanced compensation awarded by the courts and tribunals. - 2) The cost incurred by the Board for prosecuting such proceedings in courts and tribunals - 3) Increased cost of development work and amenities undertaken with respect to the scheme after a final settlement of account in connection therewith. 10. A perusal of Ext.P8 will show that the amount claimed are the balance of difference in land value (with interest), H.P.Balance (even though this is not mentioned in Ext.P8 produced in court, the original of Ext P8 produced by the respondents will show the same) and additional land value (with additional development). 11. It is an admitted fact that, after the acquisition proceedings based on the reference applications submitted by **W.P.(C.) No. 11039 of 2011 13** the landowners, the matter reached the reference court and all the reference cases were disposed of by the Sub Court, Kottayam on 5.4.1986. It is also an admitted fact that no appeals were filed by any of the claimants for enhancement of the compensation awarded in those cases. Subsequently, Ext.P5 agreement was executed on 19.1.1990. The respondents can claim any additional amounts based on Ext.P5 agreement only as per clauses 4, 6, 10 and 11. Since the land acquisition reference cases were concluded before Ext.P5 agreement was executed and there is no enhancement of land value after Ext.P5 agreement, the respondents cannot claim any additional amount based on the clauses in Ext.P5. It is true that as per clause 7, the respondents can claim the difference between the tentative price fixed and the price finally fixed by the board. But that is possible only if there is any enhancement of land value by the courts and tribunals. Moreover, the respondents have no case that the amount claimed in Ext.P8 is the cost incurred by the board for prosecuting any proceedings before the court or tribunal. The **W.P.(C.) No. 11039 of 2011 14** difference in land value even as per Ext.P5 agreement is possible, only if there is any enhancement of compensation by the court or tribunal. Admittedly, no enhancement of compensation is there as on the date of execution of Ext.P5 agreement and even thereafter also. The other amount claimed in Ext.P8 is additional land value, which is claimed as Rs.5,03,412/-. When admittedly there is no enhancement of compensation after Ext.P5 agreement, how this additional land value is assessed by the respondents is not clear. It is stated in Ext.P5 that the amount of Rs.5,03,412/- is towards “additional land value (with additional development)”. What is the additional land value and what is the amount claimed for additional development is also not clear from Ext.P8. The respondents are bound by Ext.P5 agreement. Admittedly, there is no enhancement of compensation by the courts or tribunals. In such circumstances, the claim of the respondents towards additional land value and balance of difference in land value is unsustainable. Then what remains is whether the respondents can claim any amounts toward cost of **W.P.(C.) No. 11039 of 2011 15** development work and amenities undertaken with respect to the scheme after the final settlement of the account as envisaged in Ext.P5 agreement. The respondents also says that there is balance in H.P. In Ext.P8, it is vaguely stated that an amount of Rs.5,03,412/- includes additional development. What is the amount payable for the additional development is not clear. That question can be left open. The respondents can issue fresh demand if there is any additional cost of development work and amenities undertaken with respect to the scheme, after the final settlement of the account. Similarly, if there is any H.P.Balance in the account of the petitioner, that also can be claimed by issuing a statement of accounts showing the balance H.P. As far as the land value is concerned, since there is no enhancement made by the court/tribunal after Ext.P5 agreement, the respondents cannot claim any additional amount based on Ext.P5 agreement. Therefore, Ext.P8 is to be set aside granting liberty to the respondent-Board to issue fresh demand claiming the amount if any towards the increased cost of **W.P.(C.) No. 11039 of 2011 16** development work and amenities undertaken with respect to the scheme after the final settlement of the account in connection therewith and also the H.P.Balance if any by issuing a statement of account showing the defaulted H.P.Balance. Therefore, this writ petition is allowed in the following manner : ## 1) Ext.P8 is set aside. - 2) The respondents are free to issue a fresh demand for payment to the petitioner within one month from the date of receipt of a copy of this judgment, if there is any amount due towards increased cost of development work and amenities undertaken with respect to the scheme after the final settlement of the account in connection with this scheme and also the balance H.P. amount if any due by giving a statement of account of the same. - 3) If the amount is claimed by the respondents as above, the petitioner is free to pay the same and once the **W.P.(C.) No. 11039 of 2011 17** amount is paid, the respondents will execute the sale deed in the name of the petitioner forthwith as far as plot Nos. 211-C of Gandhi Nagar Housing Accommodation Scheme, Kottayam 4) If no claim is made by the respondents as per clause 2 of the above directions in this judgment within one month from the date of receipt of a copy of this judgment, the respondents will execute the sale deed in the name of the petitioner forthwith, without insisting for payment of any further amount. Sd/- **P.V.KUNHIKRISHNAN, JUDGE** SKS **W.P.(C.) No. 11039 of 2011** **18** ## **APPENDIX** **PETITIONER'S EXHIBITS** **:** **EXT.P1 TRUE COPY OF THE APPLICATION AND THE PROSPECTUS FOR ALLOTMENT OF PLOT NUMBERED AS 0321 SUBMITTED BY PETITIONER TO THE 2ND RESPONDENT** **EXT.P2 TRUE COPY OF THE PROVISIONAL ALLOTMENT NO.D4/10473/85 DTD 16.11.1987** **EXT.P3 TRUE COPY OF THE ORDER DTD. 31.12.1998 CLUBBING THE PLOTS TOGETHER** **EXT.P4 TRUE COPY OF THE LETTER NUMBERED AS DS/S211(C)GHAS/87 DATED 20.02.1989** **EXT.P5 TRUE COPY OF THE AGREEMENT DTD. 19.1.1990 ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT** **EXT.P5(A) TRUE COPY OF THE LETTER DTD. 19.1.1990** **EXT.P6 TRUE COPY OF THE BUILDING PERMIT** **EXT.P7 TRUE COPY OF THE LOAN CLOSURE CERTIFICATE DTD.9.6.2004 ISSUED BY THE HOUSING BOARD** **EXT.P8 TRUE COPY OF THE NOTICE DTD. 16.9.2003 ISSUED BY THE 3RD RESPONDENT** **EXT.P9 TRUE COPY OF THE REPLY DTD 14.10.2003** **EXT.P10 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER ON 14.3.2005 BEFORE THE RESPONDENTS** **EXT.P11 TRUE COPY OF THE JUDGMENT DTD.18.2.2010 IN WA NO.2481/2005** **RESPONDENT'S EXHIBITS : NIL**