J.Sarathchandran Nair vs The Chief Commander
2021 Latest Caselaw 6539 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                  &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

  WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942

                          WA.No.385 OF 2021

   AGAINST THE JUDGMENT IN WP(C) 21331/2017(N) OF HIGH COURT OF
                              KERALA

APPELLANT:

               J.SARATHCHANDRAN NAIR
               AGED 65 YEARS
               S/O.JANARDANAN NAIR, RESIDING AT CHANDRAMANGALAM,
               T.C.7/1385, VETTA MUKKU, THIRUMALA POST,
               THIRUVANANTHAPURAM 695 006.

               BY ADVS.
               SRI.P.B.KRISHNAN
               SRI.P.B.SUBRAMANYAN
               SRI.SABU GEORGE
               SMT.B.ANUSREE
               SRI.MANU VYASAN PETER
               SMT.MEERA P.
RESPONDENTS:

       1       THE CHIEF COMMANDER
               INDIAN COAST GUARD VIZHINJAM, THIRUVANANTHAPURAM
               695 521.

       2       THE STATE OF KERALA
               REP.B THE SECRETARY, DEPARTMENT OF REVENUE (B)
               DEPARTMENT, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM 695 001.

       3       THE DISTRICT COLLECTOR
               CIVIL STATION, THIRUVANANTHAPURAM 695 043

       4       THE DISTRICT LEVEL PURCHASE COMMITTEE
               CIVIL STATION, THIRUVANANTHAPURAM 695 043


              SRI.KRISHNADAS P NAIR, CGC FOR R1,
              SRI.TEK CHAND SENIOR GOVERNMENT PLEADER FOR R2 AND
              R3
     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA.No.385 OF 2021                             2




                                    JUDGMENT

Dated this the 24th day of February 2021

SHAJI P.CHALY,J

This writ appeal is filed by the 1st respondent challenging the order in

R.P. No.571/2018 in the Judgment in W.P.(C) No.21331/2017, who was the

writ petitioner. Review of the Judgment dated 21- 08- 2017 of the learned

Single Judge was sought for by the 4th respondent in the writ petition, whereby

the learned Single Judge disposed of the writ petition with the following

directions:

" In the circumstances, the writ petition is disposed of directing the fourth respondent to disburse the amounts payable to the petitioner for the property surrendered by him, within two months from today. It is also directed, having regard to the peculiar facts of this case, that if the amounts cannot be paid for any reason within the aforesaid time, the petitioner shall be paid interest for the amounts at the rate of 12% per annum. All other issues are left open."

2. Facts in brief are as follows; the 4 th respondent i.e., the Chief

Commander, Indian Coast Guard, Thiruvananthapuram and the 1st respondent

in the appeal, has required the State Government to acquire two parcels of

land in possession of the writ petitioner/ appellant for the purposes of Indian

Coast Guard. Proceedings were accordingly initiated for the said purpose by

the competent authority of the State Government and as part of the said

proceedings, the District Level Purchase Committee (DLPC) has fixed the value

of the land in possession of the appellant. In fact the appellant has agreed to

convey the land in his possession to the 4 th respondent at the rate fixed by the

District Level Purchase Committee by executing Exhibit P10 and P11 consent

letters. Accordingly, the District Collector issued a communication to the Chief

Commander of Indian Coast Guard on 21.3.2016, requiring him to get the sale

deed of the land executed directly from the appellant by paying land value in

terms of the decision of the District Level Purchase Committee. According to

the appellant, since the Chief Commander of Coast Guard did not take steps to

get the sale deed executed by paying the land value in accordance with the

decision taken by the District Level Purchase Committee and required by the

District Collector as specified above, appellant has filed the writ petition

alleging that in the light of Exhibit P10 and P11 consent letters, he is unable to

make use of the land for other purposes and sought to declare that the

consent letters have lapsed or unenforceable. In the facts and circumstances of

the case, the learned Single Judge disposed of the writ petition at the

admission stage by issuing the directions extracted as above. Anyhow it was

directed that if the amounts were not paid within the time fixed, the appellant

shall be paid interest at the rate of 12% per annum. In fact, all other issues

were left open.

3. However, the Chief Commander of Coast Guards filed

I.A.No.19025/2017 seeking extension of time to comply with the directions

contained in the judgment, which was dismissed by the learned Single Judge

on 7.12.2017, clarifying that if the amounts due could not be paid within the

time stipulated, it can be paid with interest as specified in the judgment itself.

Anyhow on 5.7.2018 the review petition in question was filed basically

contending that the judgment in the writ petition was rendered by the learned

Single Judge on an incorrect assumption that the appellant had surrendered

the land to the the Chief Commander of Coast Guards and that the said

authority was yet to obtain possession of the land from the appellant and

further that, delay in getting the sale deed of the land executed is on account

of the delay in obtaining appropriate sanction from the concerned department

of the Central Government for acquiring land. It was on filing of the review

petition that the learned Single Judge realised that the appellant had not

surrendered the land,, to the the Chief Commander of Coast Guards, and the

contention put forth in the writ petition was that since the copies of the

documents of title have already been collected from the appellant, he is unable

to make use of the land for any other purposes. It is also relevant to note that

the prayer put forth by the appellant in the writ petition was for a declaration

that the consent letters issued by him has become unenforceable, and rest of

the relief sought for alternatively, was for directing the the Chief Commander

of Coast Guards, to pay the compensation fixed for acquisition of the land,

forthwith.

4. Actually when the review petition was filed only, the learned Single

Judge realised that it was on an incorrect assumption of the learned Single

Judge that the appellant has surrendered the land to the the Chief

Commander of Coast Guards on 14.12.2015, directions were issued to pay

interest if the sale deed was not executed within the time period prescribed in

the judgment.

5. Anyhow during the pendency of the review petition, the Chief

Commander of Coast Guards has got the sale deed executed after paying the

land value fixed by the DLPC. But submitted that the interest as directed by

the learned Single Judge was not paid in view of the pendency of the review

petition. Even though the learned Single Judge found that there was delay on

the part of the the Chief Commander of Coast Guards to get the sale deed

executed, the review petition was allowed on the ground that the interest was

ordered on the mistaken notion that land was surrendered by the appellant to

the the Chief Commander of Coast Guards as early as on14.12.2015 and did

not get the land value despite the lapse of 18 months. Therefore, the learned

Single Judge was of the opinion that there was a clear error apparent on the

face of the records and if at all the appellant is entitled for any equitable relief,

it can only be granted in any proceeding on appreciation of the true facts. It is

thus challenging the legality and correctness of the order in review that the

appeal is preferred.

6. We heard, learned counsel appearing for the appellant Sri.P.B.Krishnan,

learned Central Government Counsel, Sri.Krishnadas P.Nair, learned Senior

Government Pleader for the State Sri.Tek Chand, and perused the pleadings

and materials on record.

7. The discussions made above would make it clear that the directions

were issued in the judgment dated 21.8.2017 by the learned Single Judge on

a mistaken impression that the property was surrendered on 14.12.2015 by

the appellant, which is very well reflected in the judgment itself. However, on

filing of the review petition alone it was realised that the property was not

surrendered and the parties were guided by the consent letters issued by the

appellant, and the land value fixed by the DLPC constituted by the State

Government for valuation of the land, for purchase. Therefore, it can be seen

that there were no terms and conditions executed by and between the parties,

except the offer made by the appellant consenting to sell the lands by

executing a sale deed in favour of the Chief Commander of Coast Guard in

accordance with the price fixed by DLPC and also agreed to release the land in

advance. It is also clear that there was no agreement executed by and

between the parties to guide the execution of the sale deed, and fixed any

time limit.

8. The paramount contention advanced by the learned counsel for

appellant was that since the consent letter was issued, the appellant was

prevented from dealing with the property and developing the same by which

the appellant was put to severe losses and damages. The issue of sale of

immovable property is guided by section 54 of the Transfer of Property Act,

1882, which defines sale as a transfer of ownership in exchange for a price

paid or promised or part-paid and part-promised. Part 2 of the said section

deals with, how the sale is to be made, which specifies that, such transfer, in

the case of tangible immovable property of the value of one hundred rupees

and upwards, or in the case of a reversion or other intangible thing, can be

made only by a registered instrument. It is clear from the said provision that

delivery of tangible immovable property takes place when the seller places the

buyer, or such person as he directs, in possession of the property. It also

deals with a contract for sale and states that a contract for the sale of

immovable property is a contract that a sale of such property shall take place

on terms settled between the parties and it does not, of itself, create any

interest in or charge on such property. However, in the case at hand, consent

letters were issued as is stated above but the possession of the property

remained with the appellant. Therefore the appellant is not entitled to make

any claim for interest since there was no agreement or contract executed by

and between the parties accordingly. It is also clear that there was no

inhibition, or any manner of fetter disabling the appellant to resile from the

consent given and utilise the property in any manner of his choice in his

capacity as the owner of the property.

9. A reading of the provisions of section 54, would make clear that the

transfer of tangible immovable property takes place when the seller places the

buyer or such person as he directs, in possession of the property. Therefore,

it is clear that since the issue on hand is not a transaction by delivery of the

property, the issue is not guided by any of the provisions of the transfer of

property act 1882, thus to sustain the claim of the appellant for interest . The

provisions of Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 cannot be applied, as

contented, since no proceedings were initiated under the said act, and the

transaction was solely on the basis of the consent letters issued by the

appellant.

10. Anyhow we are not proceeding further in the same since the question

that arose before the learned Single Judge was in respect of the error

apparent on the face of the judgment since the learned Single Judge recorded

in the judgment that the possession of the property was surrendered by the

appellant on 14.12.2015, which persuaded the learned Single Judge to order

interest at the rate of 12% per annum, if the sale deed was not executed

after the payment of the land value within the period prescribed in the

judgment. Therefore, it can be seen that there was clear error on the face of

the record since even according to the appellant, the possession of the

properties were not surrendered by the appellant. Therefore, we are of the

considered opinion that no legal or factual circumstances are made out by the

appellant to interfere with the order of the learned Single Judge in the review

petition, exercising the powers conferred on this Court under section 5 of the

Kerala High Court Act, 1958, there being no jurisdictional error or other legal

infirmities .

Needless to say appeal fails, accordingly it is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

                                                   SHAJI P.CHALY

smv                                                     JUDGE