K. V. Babu and P. A. Prabhavathy v. Kerala State Housing Board and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945`** ## **`WP(C) NO. 24221 OF 2007`** ## **`PETITIONERS:`** ``` 1K.V.BABU ADVOCATE, RESIDING AT KADAVITHARA HOUSE, ERAMALLOOR. ``` - `2 P.A.PRABHAVATHY, W/O BABU RESIDING AT KADAVITHARA HOUSE, ERAMALLOOR.` ``` BY ADVS. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE ``` ## **`RESPONDENTS:`** - `1 THE KERALA STATE HOUSING BOARD, REPRESENTED BY ITS SECRETARY, SANTHI NAGAR, TRIVANDRUM.` - `2 THE EXECUTIVE ENGINEER DIVISION OFFICE, KERALA STATE HOUSING BOARD, ALAPPUZHA- 688 011.` ``` 3ASSISTANT EXECUTIVE ENGINEER DIVISION OFFICE, KERALA STATE HOUSING BOARD, ALAPPUZHA, 688 011. ``` - `4 ASSISTANT EXECUTIVE ENGINEER KERALA STATE HOUSING BOARD, BRANCH OFFICE, CHERTHALA.` ``` BY ADVS. SRI.GEORGE BOBAN, SC, K.S.H.B. SHRI.V.HARISH, SC, KERALA STATE HOUSING BOARD - KSHB POOVAPPALLY M.RAMACHANDRAN NAIRSC.KSHB SRI.K.DENNY DEVASSY, SC, K.S.H.B. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 24221 OF 2007 ``` ``` 2 ``` ## **JUDGMENT** The present writ petition is directed against the letter Ext.P12 issued by the 2[nd] respondent dated 11.03.2005 demanding a sum of Rs.3,09,313/- (Three Lakhs Nine Thousand Three Hundred and Thirteen Only), Ext.P14 dated 01.12.2006 and Ext.P15 notice dated 03.07.2007, on failure to pay, the possession was threatened to be taken. 2. The facts in brief are that petitioners applied for allotment of plot to Kerala State Housing Board – 1[st] respondent. Vide Ext.P1 communication dated 27.10.2003, were informed about the allotment issued by the 2[nd] respondent was on a price of Rs.9,35,120/- (Nine Lakhs Thirty Five Thousand One Hundred and Twenty Only) in respect of an area measuring 349 square meters. Vide Ext.P7 agreement dated 08.12.2003 petitioners paid the entire price ie., actual land of the property as well as the constructed portion. However, vide impugned communication Ext.P12, were asked to remit an amount of Rs.3,90,313/- on the ground that there was an enhancement in the value of the land. ``` WP(C) NO. 24221 OF 2007 ``` ``` 3 ``` 3. Sri.S.Sreekumar, learned senior counsel assisted by Sri.P.Martin Jose submitted that the controversy in the case is squarely covered by the judgment of the Division Bench of this Court reported as **2006 KHC 783** in **Grace Joseph** v. **State of Kerala and Others** where in an identical situation in respect of demand raised by the Kerala State Housing Board was quashed. Though the date of the award and order of the Court was different, but if taken into consideration, this case is also required to be allowed in terms of the said judgment, for, after receipt of the entire amount the respondents had entered into the agreement on 08.12.2003 whereas the award of the Land Acquisition Collector in the instant case was passed on 23.09.1986. In pursuance of the reference sought by the claimants-land owners, reference court enhanced the amount of compensation vide judgment dated 26.07.1994 which contained the element of interest on solatium and the benefit of Section 23(1A) of the erstwhile Land Acquisition Act, 1874. Only thereafter the agreement was entered into taking into consideration the cost of the enhancement. Therefore, respondents cannot volte face and demand the amount of ``` WP(C) NO. 24221 OF 2007 ``` ``` 4 ``` Rs.3,09,313/- without giving the break up. 4. On the other hand, learned counsel appearing on behalf of the Kerala State Housing Board submitted that the facts referred to in the judgment cited were in respect of property or flat purchased in an auction and therefore, it would not have similarity as in the instant case, allotment letter , was issued on 08.12.2003. 5. I have heard the learned counsel for the parties and appraised the paper book and of the view that the argument of the Kerala State Housing Board does not merit acceptance for the reason that in the instant case also, vide Ext.P1 allotment, of constructed portion for a total value of land Rs.9,35,120/-, was made 08.12.2003. Award was passed on 23.09.1986 and the reference court increased the amount of compensation vide judgment dated 26.07.1994 containing the element of interest on solatium as well as benefit under Section 23(1A) of the erstwhile Land Acquisition Act, 1874. After receipt of the entire amount, the agreement dated 08.12.2003 Ext.P7 was entered into. By that time the Appellate Court vide order dated on 14.10.2003reduced the amount of interest on solatium as well as benefit under Section ``` WP(C) NO. 24221 OF 2007 ``` ``` 5 ``` 23(1A). While entering into the agreement, the entire value of the land and building was taken into consideration rather there was reduction in the amount of compensation and not increase. Therefore, in my view as well as in view of the judgment cited supra, the respondents were not entitled to seek increased demand except the land value of excess area. 6. Demand letters Exts.P12, P14 and P15 are quashed. Respondents are directed to issue fresh demand regarding the value of land in respect of excess area allotted or in possession of the petitioners, by giving the break up. While giving the breakup, it would be borne in mind the Housing Board whether on demand raised by the Land Acquisition Collector in respect of the execution proceedings initiated by the land owners had deposited the enhanced amount on their own or not, for the reason the element of interest cannot be fastened upon the allottees in view of the provisions of order 21 Rule 1 code of civil procedure. It is settled law tha element of interest would stop running the day and time when the amount so demanded is deposited by the Land Acquisition Collector in the account of the claimants. It is further ``` WP(C) NO. 24221 OF 2007 ``` ``` 6 ``` directed the sale deed be executed in favour of the petitioners or representatives in accordance with law, after the settlement of the amounts. Writ petition stands disposed off. **Sd/-** **AMIT RAWAL JUDGE** nak ``` WP(C) NO. 24221 OF 2007 ``` ``` 7 ``` ## **`APPENDIX OF WP(C) 24221/2007`** ``` PETITIONER EXHIBITS ``` - `EXHIBIT P1 TRUE COPY OF THE INFORMATION OF ALLOTMENT ISSUED BY 2ND RESPONDENT DATED 27.10.2003.` - `EXHIBIT P2 TRUE COPY OF THE ALLOTMENT ISSUED BY 2ND RESPONDENT DATED 3-12-2003` - `EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 18-11-2003 ISSUED BY THE 2ND RESPONDENT FOR REMITTANCE OF RS.7,74,502/-` - `EXHIBIT P4 TRUE COPY OF THE RECEIPT DATED 5-10-2002 ISSUED BY THE 2ND RESPONDENT FOR REMITTANCE OF RS.1,00,618/-` - `EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 10-01-2003 ISSUED BY THE 2ND RESPONDENT FOR REMITTANCE OF RS.60,000/-.` - `EXHIBIT P6 TRUE COPY OF LETTER DATED NIL SIGNED BY THE 2ND RESPONDENT` - `EXHIBIT P7 TRUE COPY OF THE AGREEMENT DATED 8-122003 SIGNED BY THE 2ND RESPONDENT` - `EXHIBIT P8 TRUE COPY OF LETTER ISSUED BY 2ND RESPONDENT DATED 12/03` - `EXHIBIT P9 TRUE COPY OF LETTER ISSUED BY 2ND RESPONDENT TO THE PETITIONERS DATED 1-42004.` - `EXHIBIT P10 TRUE COPY OF LETTER DATED 5-3-2004 ISSUED BY UNION BANK OF INDIA, IRINJALAKUDA BRANCH` ``` 8 ``` ## **`WP(C) NO. 24221 OF 2007`** ``` EXHIBIT P11TRUE COPY OF THE LETTER ISSUED BY 2ND PETITIONER DATED 19-7-2004 ``` - `EXHIBIT P12 TRUE COPY OF LETTER ISSUED BY 2ND RESPONDENT DATED 11-3-2005 TO THE PETITIONERS TO REMIT A SUM OF RS.3,09,313/-` - `EXHIBIT P13 TRUE COPY OF LETTER ISSUED BY 2ND RESPONDENT DATED 4.11.2005 TO THE PETITIONERS` - `EXHIBIT P14 TRUE COPY OF LETTER DATED 1-12-2006 ISSUED BY 2ND RESPONDENT TO THE PRACTITIONERS` ``` EXHIBIT P15TRUE COPY OF THE NOTICE ISSUED TO THE 1ST P[PETITIONER DATED 3-7-2007 ``` ``` EXHIBIT P16TRUE COPY OF THE SALE DEED NO.10/07 ``` ``` RESPONDENTS EXHIBIT ``` ``` EXHIBIT R1(A)TRUE COPY OF THE LETTER DATED 4.3.2005 SENT BY CHIEF ENGINEER, K.S.H.B. EXHIBIT R1(B)TRUE COPY OF DETAILS OF INCREASE VALUATION ```