Kerala High Court
Cochin Shipyard Staff Co-Operative vs Greater Cochin Development Authority
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
MONDAY, THE 20TH DAY OF MAY 2013/30TH VAISAKHA 1935
WP(C).No. 27011 of 2008 (N)
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PETITIONER(S):
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COCHIN SHIPYARD STAFF CO-OPERATIVE
HOUSE CONSTRUCTION SOCIETY LTD.NO.E.346,
COCHIN SHIPYARD LTD., KOCHI - 682 015
REPRESENTED BY ITS SECRETARY, K.G.SOMARAJAN.
BY ADVS.SRI.C.S.AJITH PRAKASH
SRI.T.D.SALIM
SRI.PAUL C THOMAS
RESPONDENT(S):
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1. GREATER COCHIN DEVELOPMENT AUTHORITY,
KOCHI - 682 020, REPRESENTED BY ITS SECRETARY.
2. STATE OF KERALA, NOTICE TO WHOM MAY BE
SERVED ON THE SECRETARY, LOCAL SELF GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
R1 BY ADV. SRI.N.NANDAKUMARA MENON (SR.)
R1 BY ADV. SRI.P.K.MANOJKUMAR
R1 BY ADV. SRI.C.A.MAJEED, GREATER COCHIN DEVELOPMENT AUTHORITY
BY SMT.K.T.LILLY, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-05-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AS
WP(C).No. 27011 of 2008 (N)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: COPY OF SALE DEED NO.2603 DATED 13/10/1977 EXECUTED BY THE 1ST
RESPONDENT IN FAVOUR OF THE PETITIONER SOCIEITY.
EXT.P2: COPY OF DEED OF INDEMNITY DATED 13/10/1977 EXECUTED BETWEEN
THE 1ST RESPONDENT AND PETITIONER SCOEITY.
EXT.P3: COPY OF LETTER NO.12228/C6/87/92/E&R/GCDA DATED 13/10/1992
ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER SOCIEITY.
EXT.P4: COPY OF LETTER NO.E1.2128/93/GCDA DATED 4/2/2002 ISSUED BY THE
SPECIAL THAHASILDAR (R.R), ERNAKULAM TO THE 1ST RESPONDENT.
EXT.P5: COPY OF LETTER NO.12228/C6/82/GCDA DATED 18/9/1997 ISSUED BY THE
1ST RESPONDENT TO THE PETITIONER SOCIEITY.
EXT.P6: COPY OF REPRESENTATION DATED 13/11/2003 FILED BY THE
PETITIONER SOCIETY BEFORE THE 1ST RESPONDENT.
EXT.P7: COPY OF JUDGMENT DATED 26/11/2003 IN WP.(C).NO. 36563/2003(C) OF
THIS HON'BLE COURT.
EXT.P8: COPY OF LETTER NO. 12228/C6/82/GCDA DATED 16/1/2007 ISSUED BY
THE 1ST RESPONDENT TO THE PETITIONER SOCIETY.
EXT.P9: COPY OF LETTER DATED 24/7/2008 ISSUED BY THE 1ST RESPONDENT TO
THE PETITIONER SOCIETY.
EXT.P10: COPY OF APPLICATION DATED 14/8/2008 FILED BY THE PETITIONER
SOCIETY BEFORE THE 1ST RESPONDENT.
EXT.P10(A): COPY OF RECEIPT DATED 14/8/2008 ISSUED BY THE 1ST RESPONDENT,
FOR HAVING RECEIVED EXT.P10 APPLICATION.
RESPONDENT'S EXHIBITS:
EXT.R1(A): COPY OF THE LETTER NO.12228/C6/CGDA DATED 28/2/2005.
EXT.R1(B): COPY OF THE LETTER NO.12228/C6/82/CGDA DATED 6/4/2005.
EXT.R1(C): COPY OF THE ORDER NO.17093/G2/05/LSG DATED 20/11/2006.
/TRUE COPY/
P.A.TO JUDGE
AS
C.K. ABDUL REHIM, J.
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W.P.(C). No. 27011 of 2008
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Dated this the 20th day of May, 2013
JUDGMENT
The petitioner is a Housing Co-operative Society registered under the Kerala Co-operative Societies Act. Members of the society are the employees of Cochin Shipyard Limited. Issue involved pertains to demand for payment of enhanced land cost to the 1st respondent, with respect to 578 cents of land allotted to the petitioner society. Exhibit P1 sale deed was executed between the 1st respondent and the petitioner society with respect to transfer of ownerships of the land, in the year 1977. The petitioner society had executed Exhibit P2 indemnity bond in favour of the 1st respondent undertaking to make good excess amount if any become payable by the 1st respondent on settlement of land acquisition awards and with respect to further dues if any owing to any increase in miscellaneous and development charges. Undertaking in Exhibit P2 is to the effect that, payments will be made within 30 days from W.P.(C). No. 27011 of 2008 -2- the date of receipt of notice of demand issued by the 1st respondent. The 1st respondent issued Exhibit P3 notice claiming a sum of Rs.6,72,434/- towards enhanced land cost. Admittedly the said amount was already recovered from the petitioner society. Subsequently, Exhibit P5 notice was issued demanding a further sum of Rs.4,28,298/-. Since the said amount, which was demanded as early as in the year 1997, is not paid, the 1st respondent claimed huge amount of interest and initiated recovery steps. Through Exhibit P6 representation the petitioner society requested for waiver of interest which was not considered by the 1st respondent. The petitioner society had approached this court in a writ petition which was disposed of through Exhibit P7 judgment. This court directed the 1st respondent to consider the representation and to take a decision regarding waiver of interest, after affording an opportunity of personal hearing to the petitioner. In the meanwhile the 1st respondent referred the matter for decision of the Government. But the W.P.(C). No. 27011 of 2008 -3- Government have rejected the claim of the petitioner for waiver of interest. Further demand was raised through Exhibit P8 and P9 for payment of a sum of Rs.11,49,844/-. It is aggrieved by the said demand that the petitioner is approaching this court.
2. Along with the additional counter affidavit filed by the 1st respondent, documents were produced to show that the 1st respondent society had requested the Government to take a favourable decision in the matter of granting waiver of interest. Exhibit R1(b) is the letter issued by the 1st respondent to the Government. It is stated therein that on the basis of discussions conducted with the petitioner society the entire principle amount has been remitted. It is mentioned therein that an amount of Rs.9,61,663/- is due towards interest for the period from 01.04.1994 to 16.03.2005. By the said letter the 1st respondent requested the Government to consider the request of the petitioner society for wavier of interest, favorably. But the W.P.(C). No. 27011 of 2008 -4- Government in Exhibit R1(c) had declined the request stating that only 50% waiver of the penal interest alone is permitted with respect to loan schemes formulated by the 1st respondent authority. Therefore total waiver of interest due from the petitioner society cannot be permitted.
3. Petitioner is challenging the decision on the basis that neither the 1st respondent nor the Government have taken a decision bestowing their attention to the real issue involved. According to the petitioner society, entire amount due to the original land owners by way of enhanced land cost had already been paid. The entire amount due has already been realised from the petitioner society. What is now in dispute is only with respect to liability for payment of interest. According to the petitioner the delay in payment occurred only because they could not recover amounts from their members who are allottees of the house plots.
4. Question is whether the society can be exonerated from liability for payment of interest. It is a matter which W.P.(C). No. 27011 of 2008 -5- need be considered independently on the facts and circumstances of the issue. Stand taken by the 1st respondent authority is that they cannot permit waiver of interest, unless sanction is obtained from the Government. It is evident from Exhibit R1(b) that the authority had requested the Government to permit such waiver. But denial of such request from the side of the Government was without consideration of the real issue involved. The reasoning mentioned in Exhibit R1(c) that full waiver with respect to land schemes formulated by GCDA is not allowed, is not at all an appropriate reason to reject the request. Hence I am of the view that a reconsideration of the matter is warranted at the level of the Government. It is for the Government to consider all aspects in its real perspective and to take an appropriate decision on the aspect as to whether GCDA can be permitted to allow waiver of interest.
5. Under the above mentioned circumstances, decision taken by the Government as per Exhibit R1(c) is W.P.(C). No. 27011 of 2008 -6- hereby quashed. The 2nd respondent Government is directed to reconsider the issue in view of Exhibit R1(b) request submitted by the 1st respondent on the representation made by the petitioner seeking waiver of interest. An appropriate decision shall be taken considering all factual circumstances prevailing, after affording an opportunity of hearing to the petitioner society as well as to representative of the 1st respondent. A decision in this regard shall be taken at the earliest possible, at any rate within a period of two months from the date of receipt of a copy of this judgment.
Till such time a fresh decision is taken, no coercive steps shall be taken against the petitioner, provided the petitioner had already remitted the entire principle amounts.
Sd/-
C.K. ABDUL REHIM, JUDGE /True copy/ P. A. to Judge Pn