Kerala High Court
Sasikanth vs Greater Cochin Development ... on 6 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 6TH 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
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Dated this the 06th day of October, 2021
JUDGMENT
Petitioners applied for a type B residence at Edathala
Housing Scheme framed by the 1st 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
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
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.
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
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
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
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
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
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, 8th 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
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
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.
Sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
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.
