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2025 DIGILAW 1795 (KER)

Sherin Hafees v. M. g. mathew

2025-07-02

AMIT RAWAL, P.V.BALAKRISHNAN

body2025
JUDGMENT : AMIT RAWAL, J . This order shall dispose of two writ appeals, W.A.No.795/2021 filed by the 5th respondent in W.P(C) No.6666 of 2007 and W.A.No.543 of 2023 by writ petitioner Nos.2 to 6 in the aforesaid writ petition, decided vide judgment dated 25.03.2021. 2. Succinctly the facts in brief for adjudication of the aforementioned intra court appeals are enumerated hereinbelow: Parties are referred to by their status in the writ petition. Writ Petitioner Nos.2 to 6, i.e., appellants in W.A. No.543 of 2023 and respondent Nos.1 to 5 in W.A. No.795 of 2021, are the allottees of residential plots in the area developed by the Greater Cochin Development Authority (GCDA) in terms of the Elamkulam West Town Planning Scheme sanctioned by the State Government under the Town Planning Act, 1108. The allotment was made in the year 1977. The area adjacent to the allottees, measuring 21.308 cents, was earmarked for public purposes like neighbourhood centres, schools etc. This plot is located on the eastern side of the plot owned by the 4 th petitioner. On 24.07.1993, GCDA sold the aforesaid plot to the Al-Ameen Educational Trust for a particular amount in terms of the assignment deed, for running a nursery school, within a period of one year of approval of the plan and design by the GCDA. The aforesaid nursery school was not set up and on 19.06.2010, the said plot was sold to one Midland Rubber and Produce Company Ltd., the 4 th respondent, who in turn, sold it to the appellant in W.A. No.795 of 2021/5 th respondent in the writ petition on 28.09.2011. After a gap of six(6) years, the 5 th respondent/appellant in Writ Appeal No.795 of 2021 submitted an application on 06.02.2017 to the concerned municipality for obtaining the permit for construction. It is thereafter, cause of action accrued in favour of the writ petitioners 2 to 6 i.e., the appellants in Writ Appeal No.543 of 2023 to file a writ petition challenging the issuance of permit for raising residential building instead of a school on the premise that after acquisition of the land, on the basis of the promulgation of the scheme, the cost of land including the development charges was burdened upon the allottees on allotment of the plot in 1977. It is a matter of record that the building has already been constructed in an area measuring 3502.61 sq.meters. It is a matter of record that the building has already been constructed in an area measuring 3502.61 sq.meters. During the pendency of the writ petition, there was an interim order subject to the outcome of the writ petition and thereafter in the year 2019, there was stoppage of construction. 3. Learned Single Judge after noticing the rival contentions as well as various judgments found that Rule 3A of the Kerala Municipal Building Rules, 1999 provides that notwithstanding anything contained in the rules, provisions or regulations in the Town Planning Scheme in force under the Act shall prevail over the respective provisions of the rules wherever such schemes exists. In other words, the Secretary of the Corporation was not empowered to issue building permit for construction of a residential building in the plot. But by noticing the provision of Section 11 of the Transfer of Property Act found that once interest is created absolutely in favour of a person on a transfer of property, there cannot be any fetters on the enjoyment of the interest so created. But considering the fact that there was a departure from the authorised plan or putting up construction for the purpose it had been reserved, disposed of the writ petition directing the GCDA to constitute a panel of three valuers registered with the insolvency and bankruptcy Board of India to assess the value of the plot purchased by the 5 th respondent from the 4 th respondent, and directed the 5 th respondent to deposit the value of the plot as assessed by the panel of valuers appointed by the GCDA, which will be completed within a period of two months. On depositing the value of the plot, the 5 th respondent i.e., the appellant in Writ Appeal No.795 of 2021, preferred an application before the Corporation for regularization of the construction and the Corporation should regularize the construction on receipt of the deposit and application if found to be in conformity with the Building Rules except as regards the land user. The amount so deposited by the 5 th respondent in turn shall be kept in a nationalized bank under any of their fixed deposit schemes and shall hold an amount with interest in trust for the allottees of the residential plots under the Scheme and thereafter the 2 nd respondent invite suggestions from the allottees of residential plots under the scheme as to the manner in which the amount in deposit is to be made use of for the benefit of the allottees and free to make use of the amount in deposit for the said purpose, after obtaining the orders from this Court. 4. Mr.S.Sreekumar, learned Senior Counsel submitted that since the allotment was made in favour of the writ petitioner and various allottees, as the benefit of compensation has inured to all the allottees and not restricted to the petitioners in the writ petition, the value of the plot kept for school at the relevant point of time in 1993 when it was sold to the 3 rd respondent, has to be kept in mind and not the date of purchase of the plot by the appellant/5th respondent from the 4 th respondent. This aspect has not been taken into consideration, therefore, the present intra-court appeal. 5. On the other hand, P.Deepak, learned Senior Counsel appearing on behalf of the appellants in W.A.No.543 of 2023 submitted that the appeal has been filed as once the court has found that the authority could not have issued the permit, the writ petition should have been allowed in toto and there was no need of appointing the committee for assessing the value of the plot purchased by the appellant – 5 th respondent from the 4 th respondent for the purpose of distribution of the value to the allottees of the residential houses in Town Planning Scheme. The Secretary of the GCDA had no authority to issue any permit as the schemed plot earmarked was only for educational purposes and not for residential purposes. 6. Mr.S.Sreekumar, in rebuttal submitted that by way of an interlocutory application additional documents have been placed on record to highlight that in 2018, the scheme was amended and the area has been kept for mixed use. 7. 6. Mr.S.Sreekumar, in rebuttal submitted that by way of an interlocutory application additional documents have been placed on record to highlight that in 2018, the scheme was amended and the area has been kept for mixed use. 7. On the other hand, Mr.P.Deepak submits that the amended scheme will apply only prospective and not retrospective and therefore cannot relate back to the Scheme, which was promulgated in 1960. 8. We have heard learned counsel for the parties and appraised the paper books. 9. The facts noted above with regard to the promulgation of the scheme, allotment to the allottees in 1977, reservation of land/plot in question/dispute for educational purposes, purchase and conversion by granting the permit are not in dispute. The GCDA, in the counter statement, stated that the cost of the subject plot, at the time when it was sold to the 3 rd respondent was far more than the price shown in the agreement deed and was in fact sold for a low price. The cost of acquisition of the plot has in fact been borne by the allottees of residential plots in the area and the same was intended for their beneficial use. Only a limited right to use the subject plot for running the nursery school was transferred by the GCDA to the 3 rd respondent and later on the 5 th respondent. Therefore, the 5 th respondent cannot claim a better right over the property. It is a matter of record that the scheme is drawn up, sanctioned and implemented under the Act by acquiring land and developing the same on sound principles of planning into a housing colony by providing wide roads, parks, open spaces, recreational areas, shopping complexes, schools, neighbourhood centres etc., and the plots in the scheme area have been sold to persons who were desirous of purchasing the same, by collecting from them not only the cost of the plots, but also the proportionate share of the common facilities provided to the allottees. It was noticed by the Single Bench that the Scheme did not confer any powers on the Chairman of the GCDA to vary the Scheme or modify or grant of permission, therefore the permission was liable to be set aside on that ground alone, by noticing the fact that the Kerala Municipality Building Rules, 1999, were in force at the time when the building permit was issued by the Corporation to the appellant in Writ Appeal No.795 of 2021/5th respondent in the writ petition as Rule 11 of the said rules conferred authority on the Secretary of the Corporation to issue building permits. If the construction proposed conform to the provisions of the Kerala Municipality Act, 1994 and the Rules thereof, the permit cannot be said to be invalid. Rule 3A of the Kerala Municipality Building Rules, 1999 categorically provided that notwithstanding anything contained in the rules, provisions or regulations in any Town Planning Scheme in force shall prevail over the respective provisions of the rules wherever such schemes exist. The aforementioned rule was introduced prior to the issuance of the building permit. But by giving the benefit of Section 11 of the Transfer of Property Act, which was purchased by the appellant in W.A.No.795 of 2021 by virtue of a registered document, the Single Bench found that the interest was created in the favour of the person on transfer of the property, therefore there could not be any impediment for enjoyment of the interest. 10. The Court, therefore, examined the nature of the construction on the touch-stone of the equity and the 3 rd party rights to be created or created, and for that, it noted that the plot was surrounded by residential buildings of similar nature and therefore, cannot be said that the construction carried out by the 5 th respondent was violating any building rules applicable except regarding the provisions relating to the change of land user. The construction had not been made without any building permit but on its strength, therefore, condoned the construction by directing the 5 th respondent to make good the loss caused to the allottees while exercising the powers under Article 226 of the Constitution of India and thereafter observed as under: “…...22. The construction had not been made without any building permit but on its strength, therefore, condoned the construction by directing the 5 th respondent to make good the loss caused to the allottees while exercising the powers under Article 226 of the Constitution of India and thereafter observed as under: “…...22. Having taken the said view, the matter which was heard and reserved for orders once was posted again and the learned counsel for the parties on either side were requested to address the Court as to the directions to be issued to the fifth respondent to make good the loss caused to the allottees. Though a few opportunities were granted, both the petitioners as also the fifth respondent were unable to make any workable proposals. Having regard to the totality of the facts and circumstances, I deem it appropriate to dispose of the writ petition directing the second respondent to constitute a panel of three valuers registered with the Insolvency and Bankruptcy Board of India to assess the value of the plot purchased by the fifth respondent from the fourth respondent, and directing the fifth respondent to deposit the value of the plot as assessed by the panel of valuers appointed by the second respondent, with the second respondent. Ordered accordingly. This process shall be completed within two months. On depositing the value of the plot with the second respondent, the fifth respondent would be entitled to prefer an application before the Corporation for regularisation of the construction and if such an application is preferred by the fifth respondent after depositing with the second respondent the amount directed above, the Corporation shall regularise the construction carried out by the fifth respondent, if the same is in conformity with the Building Rules, except as regards the land user. The second respondent shall deposit the amount aforesaid, in turn, in a nationalised bank under any of their fixed deposit schemes and shall hold the said amount with interest in trust for the allottees of residential plots under the Scheme. The second respondent shall, thereafter invite suggestions from the allottees of residential plots under the Scheme as to the manner in which the amount in deposit is to be made use of for the benefit of the allottees and free to make use of the amount in deposit for the said purpose, after obtaining orders from this Court. The second respondent shall, thereafter invite suggestions from the allottees of residential plots under the Scheme as to the manner in which the amount in deposit is to be made use of for the benefit of the allottees and free to make use of the amount in deposit for the said purpose, after obtaining orders from this Court. The writ petition would be deemed to be pending for the said limited purpose.” 11. We are of the view that such directions do not require any different interpretation, keeping in view the ends of justice and equity, particularly in 2018 the Scheme has been amended and the area kept for mixed use. 12. Now the question which is posed before us is whether the value of the land has to be determined on the basis of the price paid by the 5 th respondent in W.A.No.543 of 2023 i.e., the appellant in W.A.No.795 of 2021, when purchased from 4 th respondent or on the date when it was allotted to the 3 rd respondent i.e., in the year 1993. Whenever a land is acquired by a development authority at a particular rate by giving to the former subject to the enhancement and after developing the same and by offsetting the area meant for commercial purposes, the cost of development is always burdened upon the allottees either of the commercial area as well as for residential purposes. Since the writ petitioners had been allotted the residential plots in 1977, whereas the sale by the GCDA to the 3 rd respondent for setting up the Nursery School was in 1993, the value of the land in the year 1993 has to be taken into consideration and not the value when purchased in the year 2011 by the 5 th respondent in W.A.No.543 of 2023 i.e., the appellant in W.A.No.795 of 2021, from the 4 th respondent. If this value is taken into consideration, it will indulge into an undue enrichment to the allottees as their allotment would become almost free of cost, for, the Court cannot remain unmindful of the fact that the price fixed for allotment of residential plots was done at the time of the allotment to the allottees i.e., in 1977 and the sale for the school in the year 1993. With the aforementioned clarifications, we uphold the judgment of the Single Bench and thus dispose of W.A. No.795 of 2021 and dismiss W.A.No.543 of 2024.