W.P.(C) No. 31890 of 2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **FRIDAY, THE 6[TH] DAY OF JANUARY 2023 / 16TH POUSHA, 1944** ## **WP(C) NO. 31890 OF 2006** ## **PETITIONERS:** - **1 JOHNY MATHEW(EXPIRED) S/O. SRI.V.J.MATHEW, MALIKAYIL HOUSE, PLOT NO.81,, GHAS, AMALAGIRI P.O.-686036.** - **2 ADDL. ANNAMMA JOHN, AGED 70 YEARS W/O. LATE JOHNY MATHEW, PRESENTLY RESIDING AT C-203, DAADYS DAALIYA, KAMMASANDRA VILLAGE, HEBBAGODI, EAST CITY, BANGALORE-560100.** **3 ADDL. SUJAMOL JOHN, AGED 42 YEARS D/O. LATE JOHNY MATHEW, PRESENTLY RESIDING AT C-203, DAADYS DAALIYA, KAMMASANDRA VILLAGE, HEBBAGODI, EAST CITY, BANGALORE-560100. (ADDITIONAL PETITIONERS NO.2 AND 3 ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED 1ST PETITIONER AS PER ORDER DATED 01/10/2021 IN IA NO.1/2021 IN WPC NO. 31890/2006)** ## **BY ADVS. M.R.GOPALAKRISHNAN NAIR B.SOMADASAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY,DEPARTMENT OF HOUSING, SECRETARIAT, TRIVANDRUM.** - **2 THE KERALA STATE HOUSING BOARD REPRESENTED BY ITS SECRETARY, TRIVANDRUM.** **BY ADVS. GOVERNMENT PLEADER SRI.MANOJ RAMASWAMY GOVERNMENT PLEADER SRI.GEORGE BOBAN, SC, K.S.H.B. T.K.SAJEEV** **WP(C) NO. 31890 OF 2006** **2** ## **OTHER PRESENT:** **K.M.FAISAL ,GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 31890 OF 2006** **3** ## **P.V.KUNHIKRISHNAN** **- - - - - - - - - - - - - - - - - - - - -** W.P.(C) No.31890 of 2006 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 6[th] day of January, 2023 ## **J U D G M E N T** The above writ petition is filed with the following prayers; _“ i. Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to the issue of Exhibits-P5 and P8 and to quash the same_ _ii. declare that the petitioner is not liable to pay interest on the additional amount towards increased cost of development works and amenities beyond the project period of 1985-1992._ _iii. Declare that the petitioner is not liable to pay any additional amount towards land value after the decision in LAR Cases in 1989 as the respondents had collected the entire cost of land from the petitioner in 1985 itself._ _iv. Issue a writ of mandamus or any other appropriate writ, order or direction directing the second respondent to re-compute the increased cost of development work and amenities incurred during the project period of 1985-1992._ _v. Issue a writ of mandamus or any other appropriate writ, order or direction directing the second respondent to issue the deed of conveyance in respect of_ **WP(C) NO. 31890 OF 2006** **4** _Plot No.81 to the petitioner forthwith and_ _vi. grant such other reliefs that this Honourable Court may deem fit and necessary in the interest of justice.” (SIC)_ 2. The 2[nd] respondent formulated a housing scheme under the name of Gandhi Nagar Housing Accommodation Scheme, pursuant to which land measuring 8.65 Hectares were acquired. One Sri.Sebastian M.Mattom submitted an application for allotting a plot and as per Ext.P1, plot No.81 having a extend of 177 M[2 ] was allotted to Sri.Sebastian M.Mattom and he has paid the entire amount towards cost of the land. As per clause 6 and 7 of Ext.P1 agreement, it is stated that, the consideration paid is tentative and the housing board is entitled to refix the final land value and for the service and other amenities of the property as prescribed in the schedule therein subsequently after a final settlement of account in connection therein. The 2[nd] respondent has taken a decision to allow transfer of allotment to persons other than the relatives. Subsequently Sri.Sebastian M.Mattom, transfered plot 81 in favour of the petitioner. The transfer agreement was executed between the petitioner and the 2[nd] respondent on 16.05.1997. It is the case of the petitioner that, the Land Acquisition Reference cases were **WP(C) NO. 31890 OF 2006** **5** decided in 1989 but the respondent did not re-fix the land value. It is also the case of the petitioner is that, they have taken twenty years to re-fix the land value and issued Ext.P5 demanding an amount of Rs.2,04,240/-. According to the petitioner, in the light of the judgment of the division bench of this Court in **Grace Joseph v.** **State of Kerala and others [2006 (2) KLJ 577]** the petitioner need not pay any additional amount. Hence, this writ petition is filed. 3. Heard the learned Counsel for the petitioner and the learned Standing Counsel appearing for the Housing board. 4. This Court in a similar situation after considering the judgment of the division bench in _**Grace Joseph’s**_ case (Supra) delivered a detailed judgment, in favour of another plot owner, in the same housing scheme. It will be better to extract the relevant portion of that judgment dated 06.01.2022 in W.P.(C) No.11039 of 2011. “ 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 **WP(C) NO. 31890 OF 2006** **6** 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. 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 **WP(C) NO. 31890 OF 2006** **7** 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 **WP(C) NO. 31890 OF 2006** **8** 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 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 **WP(C) NO. 31890 OF 2006** **9** 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 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 **WP(C) NO. 31890 OF 2006** **10** ## 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: - 1) Balance of difference in Land value (with Rs. 70,067/interest) 2) H.P.balance Rs. 8,859/- - 3) Additional Land value (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 per clause 6 of Ext.P5, the **WP(C) NO. 31890 OF 2006** **11** 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 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 **WP(C) NO. 31890 OF 2006** **12** 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 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 **WP(C) NO. 31890 OF 2006** **13** 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 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 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. **WP(C) NO. 31890 OF 2006** **14** 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 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.” (SIC) 5. I think the petitioner is also entitled the same reliefs. In this case sale deed is already executed in favour of the petitioner **WP(C) NO. 31890 OF 2006** **15** subject to the result of this case. Therefore, this writ petition is allowed in the following manner; 1. Exts.P5 and P8 are 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 increase cost of development work and amenities undertaken with respect to this scheme after the final settlement of the account in connection with this scheme and also the balance HP amount if any due by giving a statement of accounts of the same. 3. If no claim is made by the respondent as per clause -2 of the above within one month from the date of receipt of a copy of the judgment, the sale deed already executed by the respondents in favour of the petitioner will be final. Moreover, if there is any balance amount is to be paid to the petitioner, the respondent will refund the same also to the petitioner forthwith. Sd/- **P.V.KUNHIKRISHNAN JUDGE** SAAP **WP(C) NO. 31890 OF 2006** **16** ## **APPENDIX OF WP(C) 31890/2006** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE AGREEMENT FOR SALE DATED 4.6.1985 EXHIBIT P2 THE TRUE COPY OF ORDER NO.EC/SP-81/GHAS/85 DATED 2.4.1997** **EXHIBIT P3 THE TRUE COPY OF THE TRANSFER AGREEMENT DATED 16.5.1997** **EXHIBIT P4 THE TRUE COPY OF THE APPLICATION FOR REGISTRATION. EXHIBIT P5 THE TRUE COPY OF THE NOTICE NO.E1/SP.81/GHAS DATED 25.12.2003 EXHIBIT P6 THE TRUE COPY OF THE LETTER NO.EC/7610/01 DATED 29.12.2005 OF THE SECOND RESPONDENT. EXHIBIT P7 THE TRUE COPY OF THE JUDGMENT DATED 29.3.2006 IN W.P(C)NO.9419/2006 EXHIBIT P8 THE TRUE COPY OF THE ORDER NO.578/A2/2006/HSG DATED 6.11.2006 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P9 THE TRUE COPY OF THE JUDGMENT DATED 22.6.2006 IN W.A.NO.2481/2005**