Sasikanth and A.R. Seena v. Greater Cochin Development Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 6[TH] DAY OF OCTOBER 2021 / 14TH ASWINA, 1943** **WP(C) NO. 26466 OF 2020** ## **PETITIONERS:** 1 SASIKANTH AGED 53 YEARS S/O. K.P.RAJAPPAN NAIR, KUTHINKARA EAST HOUSE, EDAVETTY P.O., EDAVETTY KARA, KARRIKKODE VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. 2 A.R.SEENA AGED 42 YEARS W/O. SASIKANTH, ANANDA VILLA, KALAMASSERY P.O., THRIKKAKKARA NORTH, ERNAKULAM DISTRICT. BY ADVS. RAJESH VIJAYAN SMT.SIKHA S.NAIR ## **RESPONDENTS:** 1 GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA) REPRESENTED BY ITS SECRETARY, SAHODARAN AYYAPPAN ROAD, KADAVANTHRA, PB NO.2012, KOCHI-682 020. 2 SECRETARY GREATHER COCHIN DEVELOPMENT AUTHORITY, SAHODARAY AYYAPPAN ROAD, KADAVANTHRA, PB NO.2012, KOCHI-682 020. BY ADV SMT.MINI.V.A. **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C).No.26466/2020** **2** **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.26466 of 2020 ---------------------------------------------Dated this the 06[th] day of October, 2021** ## **JUDGMENT** Petitioners applied for a type B residence at Edathala Housing Scheme framed by the 1[st] respondent which was known as Edathala Housing Scheme Phase-II for which GCDA acquired land as per the provisions of the Town Planning Act and Land Acquisition Act. The land is comprised in Re.Sy. No.324/12.22.23, in block No.35 of Aluva East Village, Aluva Taluk. The petitioners paid an advance amount of Rs.3 lakhs towards sale price. The sale price is estimated at Rs.8,68,525/-. Subsequently, the entire amount is paid as per Ext.P1 agreement. As per the agreement, when the payment schedule is over, GCDA will conduct a survey of the property and in the present case also, the GCDA officers measured out the property and directed the petitioners to pay an additional amount of Rs.4,350/- towards the head 'Extra Land Charge'. The petitioners paid that amount also, as evident by Ext.P2 receipt. It is the case of the petitioners that, thereafter no **W.P.(C).No.26466/2020** **3** amount is pending towards the loan as per the agreement and the petitioners approached the GCDA for registration of sale deed of the house to the petitioners. At that time, the petitioners were served with a model sale deed which GCDA used to execute in such cases. Ext.P3 is the model sale deed. The petitioners are aggrieved by Clauses 6.3 and 6.4 of Ext.P3. It will be better to extract Clauses 6.3 and 6.4: : _“_ 6.3 The vendee shall be entitled to sell, mortgage or otherwise dispose off the said property subject to the conditions in Para 4 provided, however, that such transferee of the vendee shall also be bound by the covenants contained in Article 2. 6.4 The Vendee shall not part with the property or alienate it either by lease, mortgage or transfer to any other person within 10 years from the date of Execution of the sale deed of the house without the prior consent of the Secretary of the Vendor. _”_ 2. Aggrieved by the same, the petitioners approached the GCDA. The petitioners were served with decision of General Council of the GCDA held on 22.11.2008, which is produced as Ext.P4. Ext.P4 order is passed pursuant to Ext.P5 judgment of this Court in W.P.(C). No.38340 of 2010. Petitioners submitted that such clauses cannot be there in the sale deed. Aggrieved by the same, this writ petition is filed **4** ## **W.P.(C).No.26466/2020** ## with following prayers: - i. To declare that imposing a restriction in the sale deed which prevents the transferor from alienating the property for 10 years and fixing a transfer fee to be paid in case of transfer within that period as illegal and void. - ii. To declare that imposing a condition in the sale deed which makes the transferor duty bound to obtain sanction of the GCDA Secretary for sale, mortgage and any transfer or alienation of the property after the execution of the sale deed as illegal and void. Iii. To issue a writ of certiorari calling for the records leading to Ext P4 in so far as it relates to the decisions No.28/2008-2009 taken by the General Counsel of the GCDA dated 22.11.2008 and the decision No.27/2008-2009 dated 24.04.2008 and set aside the same. iv. To issue a writ of mandamus or any other appropriate writ or direction directing the respondents to execute a sale deed in favour of the petitioners regarding the house purchased by the petitioners in plot No.II/5 without any restrictions including the restriction to alienate for a period of 10 years, imposing transfer fee, imposing a condition to obtain sanction of GCDA for sale or mortgage of the said property immediately or within a time limit which may be prescribed by this Hon'ble court. **5** ## **W.P.(C).No.26466/2020** v. To grant such other reliefs this Hon'ble court may deem fit and proper in the nature and circumstances of the case interest of justice. 3. Heard the counsel for the petitioners and the Standing Counsel for the respondents. 4. The counsel for the petitioners reiterated his contentions in the writ petition. The counsel submitted that there cannot be such clauses in a sale deed which will restrict the petitioners to sell their property especially when the entire amount due to the respondents are paid. The Counsel also relied on the judgment of this Court in **Gouri and Others v. Xavier @ Benny and Another [2012 (3) KHC 317]** . 5. The Standing Counsel seriously opposed the contentions of the petitioners and submitted that this is the usual clauses that will be there in sale deeds executed by the GCDA to all its customers. The first submission of the Standing Counsel is that if this Court interferes with that, the other customers of the respondents will also approach this Court with similar relief. The Standing Counsel submitted that such a condition is imposed because subsequent to the execution of sale deeds, there will be cases in which Court or other authority enhance the compensation for land involved in **W.P.(C).No.26466/2020** **6** the case. In such circumstances, such a clause is necessary. The Standing Counsel submitted that the clause only says that the petitioners should obtain permission from GCDA and that will not prejudice the interest of the petitioners. The Standing Counsel also takes me through the counter affidavit filed by the respondents in which this point is dealt in detail. The Standing Counsel also submitted that Ext.P4 is a decision taken by the GCDA based on a direction issued by this Court in a writ petition in which the 1[st] petitioner was the Secretary of the Association. The Standing Counsel also submitted that in Ext.P4 also this point is considered and decided. Therefore the petitioners cannot approach this Court at this distance of time. 6. I considered the contentions of the petitioners and the respondents. I perused the counter affidavit also. It will be better to extract the relevant portion of the counter affidavit filed on behalf of the respondents: _“_ 3. Regarding the averments in paragraph 5 and 6 of the writ petition, it is submitted that the Edathala Housing Scheme is implemented for the purpose of construction of residential buildings for allotting residential houses to the homeless people in a lesser **7** ## **W.P.(C).No.26466/2020** price than the rate prevalent in the area and the beneficiaries of the scheme are given 300 monthly installments to pay the sale price after deducting the advance amount. After implementation of the housing scheme, the land price is considerably increased and the beneficiaries of the scheme began to sell the houses for increased rates which are in effect defeating the very purpose of the scheme and caused huge financial loss to the respondents. Therefore the respondent is constrained to formulate solutions and the Executive Committee as per its resolution No.27/2008-09 dated 24-04-2008 resolved to impose restriction by including a clause in the sale deed by which the allottee shall obtain No Objection Certificate from the respondent for transferring the houses allotted to them within 10 years of allotment. It is also resolved that if the transfer is during the period of agreement, the allottee is liable to pay 30% of the total sale consideration as transfer fees. The construction of the residential houses under various schemes are being made after acquisition of the property under the provisions of Town Planning Act and Land Acquisition Act. In every acquisition there will be cases before the appropriate authority for enhancement of Land Value and consequential reliefs and orders from the court enhancing the land value with interest and the respondents being the requisition authority is bound pay the said enhanced price to the Government. In such circumstances the enhanced land value will be recovered **W.P.(C).No.26466/2020** **8** proportionately from the beneficiaries of the scheme, otherwise huge financial loss will be caused to the respondents. 4. Regarding the averments and allegations made in paragraph (7) of the writ petition, it is submitted that there is no absolute restriction in transferring the property. The imposition of condition is made only to ascertain as to whether there is any case for enhancement of land value in the particular scheme and whether any judgment of the appropriate courts enhancing the value. If there is no orders from the Courts regarding enhancement of land value, NOC will be given to the respective allottees without imposing any fees.” 7. The main apprehension pointed out by the respondents is that after the implementation of the housing scheme, the land price is considerably increased and the beneficiaries of the scheme began to sell the houses for increased rates which are in effect defeating the very purpose of the scheme and caused huge financial loss to the respondents. Therefore the respondent is constrained to formulate solutions and the Executive Committee, as per resolution dated 24.04.2008 resolved to impose restriction by including a clause in the sale deed by which allottee shall obtain no objection certificate from the respondent for **W.P.(C).No.26466/2020** **9** transferring the houses allotted to them within ten years of allotment. It is also stated in the counter affidavit that it is also resolved that if the transfer is during the period of agreement, the allottee is liable to pay 30% of the total sale consideration as transfer fees. It is specifically stated in the counter affidavit that the construction of the residential houses under the various schemes are being made after acquisition of the property under the provisions of Town Planning Act and the Land Acquisition Act. In every acquisition, there will be a cases before the appropriate authority for enhancement of land value and consequential relief and orders from the Court enhancing the land value with interest and the respondents being the requisition authority is bound to pay the said enhanced price to the Government. In such circumstances, the enhanced land value will be recovered proportionately from the beneficiaries of the scheme, otherwise huge financial loss will be caused to the respondent. This is the sum and substance of the contentions of the respondents. 8. As far as the main point raised in the counter affidavit is concerned, I think the same is answered by this **W.P.(C).No.26466/2020** **10** Court in **Gouri’s case** (supra). It will be beneficial to extract the relevant portion of the above judgment: _“_ 28. Ext.A1 provides that the appellants shall not alienate the property for a period of 20 years. In Renaud v. Tourangeau, ILR 1867 (2) PC 4 the Privy Council has opined that a restriction against alienation for 20 years was contrary to the general principles of jurisprudence. Jarman says (see 'Jarman, 8[th] Edn.' page 571) that “it seems now settled that a restraint on alienation is bad even if it is limited in point of time.” May be limited to a period of 20 years, the restraint on alienation is absolute during that period. The Corporation, by a resolution of it cannot overcome the bar under S.10 of the Act. The restraint against alienation is held void by S.10 of the Act. That is a provision enacted by the Legislature. A public policy to overcome that bar must be the result of an enactment by the Legislature. The decision in Antony v. Chellanam Grama Panchayat (supra) only says that like a Legislature, the Panchayat committee should have the powers to annul the action of the executive by a legislative process, which in the case of a Panchayat is by passing a resolution by the committee. But the decision of the local authority cannot override a provisions of the Statute. Therefore, I am to hold that the condition restraining alienation in Ext.A1 imposed by the Corporation by its decision being a total restraint of alienation is void by virtue of S.10 **11** ## **W.P.(C).No.26466/2020** of the Act.” 9. In the light of this finding, according to me, there cannot be any such restriction on alienation in the sale deed. Admittedly there is no case to the respondents that any amount is due to the respondents as on today. In such circumstances there cannot be any such condition in the sale deed. 10. As far as the second contention about the enhancement of land value is concerned, this Court directed the Standing Counsel to find out whether there is any enhancement of land value by any competent authority or by Court. The Standing Counsel, after getting instructions, submitted that there is no amount to be paid by the petitioners towards compensation for enhanced land value as on today. If that is the case, such clauses are not necessary in the sale deed. 11. The third apprehension raised by the respondents is that if this Court interfere with the clauses in the sale deed, the others will also come before this Court and there will be difficulty to the respondents. I think this is not at all a reason to reject a rightful claim of the petitioners. If there is any **12** ## **W.P.(C).No.26466/2020** illegality, parties will approach the court and they will redress their grievance from the court. Apprehending that the others will approach this Court, this Court cannot deny a legal right. Therefore, according to me, the contentions raised by the respondents will not stand. Therefore, this writ petition is allowed in the following manner: 1. The respondents will execute the sale deed in favour of the petitioners for Plot No.II/5 without including clauses 6.3 and 6.4 in Ext.P3 draft sale deed, if all other conditions are complied by the petitioners. 2. The sale deed will be executed, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment, if there is no other legal impediment. JV Sd/- **P.V.KUNHIKRISHNAN JUDGE** **13** ## **W.P.(C).No.26466/2020** ## **APPENDIX OF WP(C) 26466/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE AGREEMENT REGARDING THE LOAN, PAYMENT STRUCTURE ETC. IN THE MONTHS OF MAY 2008. EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 20.11.2020 WHICH SHOWS THE PAYMENT OF THAT AMOUNT CLAIMED BY THE GCDA. EXHIBIT P3 TRUE COPY OF THE MODEL SALE DEED SERVED TO THE PETITIONERS BY THE RESPONDENT. EXHIBIT P4 TRUE COPY OF THE DECISION DATED 29.8.2011. EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WPC 38340/2010 DATED 12.1.2011.