Kerala High Court
K.P.Ajith vs State Of Kerala on 15 June, 2012
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
MONDAY, THE 3RD DAY OF DECEMBER 2012/12TH AGRAHAYANA 1934
WP(C).No. 24836 of 2012 (D)
---------------------------
PETITIONERS:
------------
1. K.P.AJITH,
S/O.DR.K.K.PURUSHOTHAMAN,FLAT NO.AF2/107
VASANTH NAGAR,KOCHI-25.
2. BABY GEORGE,
S/O.T.V.GEORGE,FLAT NO.EF-7/5,VASANTH NAGAR
KOCHI-25.
3. GEORGE MATHEW,
S/O.C.A.MATHEW,FLAT NO.AF2/84,VASANTH NAGAR
KOCHI-25.
4. MATHEW GEORGE,
S/O.SKARIA VARKEY,FLAT NO.AF2/4,VASANTH NAGAR
KOCHI-25.
5. SHAMSUDHEEN PADIYATH,
FLAT NO.FF6/21,VASANTH NAGAR,KOCHI-25.
BY ADV. SMT.K.R.DEEPA
RESPONDENTS:
------------
1. STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
SECRETARIAT,THIRUVANANTHAPURAM.
2. THE DISTRICT COLLECTOR,
ERNAKULAM.
3. THE LAND ACQUISITION OFFICER,
LA OFFICE, VYTTILA.
4. THE KERALA STATE HOUSING BOARD,
DIVISION NO.II (ERNAKULAM) REPRESENTED BY
THE EXECUTIVE ENGINEER,
PANAMPILLY NAGAR,KOCHI-36.
5. THE KERALA STATE HOUSING BOARD
REPRESENTED BY THE SECRETARY,HEAD OFFICE
SANTHI NAGAR,THIRUVANANTHAPURAM.
WP(C).No. 24836 of 2012 (D) :- 2 :-
6. THE KERALA METRO RAIL LTD.,
REPRESENTED BY THE MANAGING DIRECTOR,
REGISTERED OFFICE AT 8TH FLOOR, REVENUE TOWER
PARK AVENUE, KOCHI-682011, KERALA.
R6 BY ADV. SRI.K.JAJU BABU,SC,KOCHI METRO RAIL LTD
R4,R5 BY ADV. SRI.GEORGE BOBAN, SC, K.S.H.B.
R BY ADV. GOVERNMENT PLEADER SRI P.P.PADMALAYAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 03-12-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 24836 of 2012 (D)
A P P E N D I X
PETITIONERS' EXHIBITS
EXT.P1: TRUE COPY OF THE REQUEST UNDER THE RIGHT TO INFORMATION ACT
DATED 15.06.2012
EXT.P2: TRUE COPY OF THE REPLY DATED 19.07.12 WAS GIVEN BY THE 4TH
RESPONDENT.
EXT.P3: TRUE COPY OF THE 2ND APPLICATION MADE BY THE 5TH RESPONDENT
DATED 3.8.2012.
EXT.P4: TRUE COPY OF THE REPLY DATED 13.09.12 GIVEN BY THE 4TH
RESPONDENT.
EXT.P5: TRUE COPY OF THE SALE DEEDS ISSUED TO THE 1ST PETITIONER BY THE
4TH RESPONDENT.
EXT.P6: TRUE COPY OF THE LAND ACQUISITION NOTIFICATION.
EXT.P7: TRUE COPY OF THE PLAN OF THE PROPOSED 2ND PHASE (REPLACED BY
ORDER DATED 02.11.2012 IN I.A.NO.14591 2012).
EXT.P8: TRUE COPY OF THE COMMUNICATION SENT TO THE 6TH RESPONDENT.
EXT.P9: TRUE COPY OF THE APPLICATION GIVEN TO THE DISTRICT COLLECTOR
UNDER SECTION 33(2) OF THE KERALA LAND ACQUISITION ACT, 1961 OF THE
L.A.ACT.
/TRUE COPY/
P.A TO JUDGE
K.SURENDRA MOHAN, J.
-----------------------------------------------------
W.P(c) No.24836 of 2012-D
----------------------------------------------------
Dated this the 3rd December, 2012
J U D G M E N T
The petitioners are allottees and owners of apartments allotted to them under the Kaloor Housing Accommodation Scheme, 1987, a project of the Kerala State Housing Board, the 4th respondent. They have filed this Writ Petition seeking the following reliefs:
"a) Issue a writ of certiorari or any other writ or order quashing Ext.P7.
b) Issue a writ of mandamus or any other writ order or direction directing the 2nd respondent to deposit the compensation of the land acquisition acquired from the Kaloor Housing Accommodation Scheme for the establishment of metro rail project order Section 33(2) of the Kerala Land Acquisition Act, 1961.
c) Issue a writ of mandamus or order or direction directing the 4th respondent to produce the original Scheme and site plan of Kaloor Housing W.P(c) No.24836 of 2012-D 2 Accommodation 1987 before this Honourable Court.
d) To declare that petitioners 1 to 5 are eligible to a proportionate share in the land and there by in the compensation of the land intended to be acquired which is a part and parcel of the Kaloor Housing Accommodation Scheme.
e) Such other and further reliefs."
2. According to the petitioners, the 6th respondent has, in implementation of the Metro Rail Project, decided to acquire a portion of the land that forms the scheme area of the 4th respondent. The petitioners who are the owners and allottees of the scheme along with other 205 flat owners or allottees are the real owners of the land that is proposed to be acquired for the Metro Rail Project. They are the only persons who are entitled to claim the amount of compensation that is proposed to be granted by the 6th respondent. However, they have not been given any notice by the 6th respondent. Though the petitioners had submitted Ext.P8, there is no reply to the same. For the above reasons, they have filed this Writ Petition seeking the above reliefs.
W.P(c) No.24836 of 2012-D 3
3. Advocate K.R.Deepa, who appears for the petitioners, points out that as per Ext.P5 agreement, an allottee or an owner of an apartment has been conveyed a proportionate right in the entire land that forms the scheme area. The learned counsel has placed reliance on Schedule A of Ext.P5 to point out that the total scheme area is 21,876 sq.m. The recital in the opening paragraph of Ext.P5 states that "the Vendor does hereby sell all that impartible undivided 0.28 percentage for road and open space and 0.28 Percentage for area occupied by the flats including incidental open space 8.33 Percentage of common area like stair case and landing area of Block No.8-AF2 type of flats share of calculation of which is given in the "C" schedule hereunder of land and in the entire scheme area of land of Kaloor Housing Accommodation Scheme more fully described in the "A" Schedule hereunder and in the plan attached as Annuexure I."
(emphasis supplied) The words, `and in the entire scheme area', alone, according to W.P(c) No.24836 of 2012-D 4 the learned counsel for the petitioner, refer to the entire extent of land that forms the scheme area as evident from Annexure-A and therefore, the entire scheme area forms the subject matter of Ext.P5 sale deed by which, 0.28% right in the said land has been conveyed. It is submitted that similar sale deeds have been executed by the 4th respondent in favour of the other apartment owners also. Thereby, all the said persons have become title holders in respect of the property that forms the entire scheme area. Being joint owners of the property, it is contended that they are all entitled to share the amount of compensation that the 6th respondent is proposing to grant in respect of the land that is proposed to be acquired.
4. The learned counsel for the petitioners has a further contention that the original scheme that was approved by the Government has been changed by the 4th respondent, without giving any notice or information to the apartment owners or the allottees. Such change being not acceptable to them, cannot be of any consequence. For the above reason, Ext.P7 plan, which shows a particular area as commercial space, is submitted to be without any authority.
W.P(c) No.24836 of 2012-D 5
5. Separate counter affidavits have been filed on behalf of respondents 4 and 5 as well as the 6th respondent. A statement has been filed on behalf of the 2nd respondent. According to Advocate Jaju Babu, who appears for respondents 4 and 5, though the total area acquired is 21876 m2, what has been conveyed to a purchaser as per Ext.P5 sale deed is not a proportionate share in the entire area. The word `and' that occurs before the words, `the entire scheme area of land' in the opening paragraph of Ext.P5 is a typographical mistake and cannot convey any right to the petitioners for the reason that the recitals in Ext.P5 make the position very clear. The learned counsel places reliance on Schedule C that is appended to Ext.P5. The opening paragraph of Ext.P5 specifically provides that the share of calculation is given in Schedule C attached to the sale deed. As per Schedule C, though the entire scheme area is 21,876 m2, the area set apart for stage one is 15788 m2. Out of the above area, the residential area is demarcated as 8640 m2. The common area is specified as 4519 m2, area of road 2629 m2, area of one AF2 type flat is 35.36 m2 and the land area of common space shared by an owner of one AF2 type flat is 20.19 W.P(c) No.24836 of 2012-D 6 m2. It is on the above basis that the percentage of share of an apartment owner has been worked out as 0.28%, it is contended. After deducting the area of 15,788 m2 utilised for implementing stage I, the balance remaining land which exceeds 6000 m2 is in the possession of the 4th respondent. Even the proportionate interest in land that is claimed by the petitioners is available only to the apartment owners and not to allottees in whose favour no such sale deeds have been executed. Out of the petitioners, according to the learned counsel, only two petitioners are apartment owners while the others are only allottees. The remaining land that is in the possession of the 4th respondent has not been utilized for any purpose, till date. It is a portion of the said unutilized land that is proposed to be acquired for implementing the Metro Rail Project. The petitioners being persons who have not acquired any interest over any portion of the said property, they cannot put forward any claim against the compensation amount that is to be granted. For the above reason, it is submitted by the learned counsel that the petitioners are not entitled to any of the reliefs claimed.
6. A separate counter affidavit has been filed by the 6th W.P(c) No.24836 of 2012-D 7 respondent. The counter affidavit does not state anything regarding the dispute between the petitioners and the 4th respondent. However, it is stated that the 6th respondent is in the process of implementing the Metro Rail Project for which, portions of the 4th respondent's land are proposed to be acquired.
7. A statement has been filed on behalf of the 2nd respondent more or less supporting the 4th respondent. According to the 2nd respondent also, the 4th respondent is in possession of the land remaining vacant after the implementation of the first stage of the Kaloor Housing Accommodation Scheme.
8. A reply affidavit has been filed on behalf of the petitioners giving a calculation statement contending that a total amount of Rs.3404856/- has been calculated in respect of the 210 apartments constructed by the 4th respondent, which is far in excess of the actual cost of the apartments. The learned counsel for the 4th respondent answers the above allegation by pointing out that the amounts shown in the petitioners' reply affidavit as cost of the apartments do not include the interest payable. The W.P(c) No.24836 of 2012-D 8 learned counsel for the petitioners maintains that excess amounts have been collected from the allottees and apartment owners by the 4th respondent.
9. Heard. I have also perused the records of the case in detail. The contention of the petitioners is that they are entitled to a share of the compensation for the land acquired by the 6th respondent. The essential contention is that what has been conveyed by Ext.P5 includes a proportionate interest in the entire extent of land that was acquired for implementing the Kaloor Housing Accommodation Scheme. However, according to the learned counsel for the 4th respondent, the Kaloor Housing Accommodation Scheme has not been implemented in full. Only stage one has been implemented and the petitioners are either apartment owners or allottees of the respective apartments constructed by the 4th respondent in implementation of stage one. A perusal of Ext.P5 sale deed is necessary for ascertaining the nature of the right that has been conveyed to an apartment owner by the said document. It is true that the opening paragraph of the said sale deed gives an impression that an interest in the land forming the whole scheme area in which the W.P(c) No.24836 of 2012-D 9 building is situate and in the open areas, parking space and roads within the scheme area has been conveyed to an individual apartment owner. However, in the succeeding portion of Ext.P5, in the description of what has been actually sold, it is stated that the share of calculation has been given in Schedule C to the sale deed and that the share in the land of the entire scheme area of the Kaloor Housing Accommodation Scheme in A schedule thereof and the plan attached as Annexure 1. Schedule A refers to 21,876 m2. Schedule B gives the description of the apartment that is sold. Schedule C gives the extent of the land acquired, the area of land utilized for stage one, and the total residential area. Details of the common area are also specified in Schedule C. On the next page, calculation of area shared by owners of one unit of AF2 type flat has been specifically stated. The area occupied by 21 blocks of land is shown as 15788 m2, the number of flats is mentioned as 210, and the area shared by one unit is shown as 44.59 m2 and the percentage of share in the land as 0.28%.
10. The above details show that the reference in the initial paragraph of the sale deed Ext.P5 could obviously have been W.P(c) No.24836 of 2012-D 10 only a mistake. It is true that the words `and in the entire scheme area of land' of Kaloor Housing Accommodation Scheme described in A Schedule comes after the reference to the Schedule C. However, Schedule C by giving an exact calculation of the area that has been conveyed puts the matter beyond any doubt, by specifying the exact area that has been conveyed to each apartment owner, which is 35.36 sq.m and 0.28% share in 15788 sq.m. Calculation of the area shared by each apartment owner has also been worked out on the basis that the total area of the land is only 15788 sq.m. Therefore, the contention that the petitioners are entitled to a proportionate share in the total scheme area of 21876 m2 cannot be accepted.
11. The petitioners have a further case that Ext.P7 plan is liable to be set aside for the reason that a change from the original approved scheme has been effected unauthorisedly by showing a particular area as commercial area by the 4th respondent. There is no case for the petitioners that any portion of area designated as commercial area has been acquired or is being proposed to be acquired for the Metro Rail Project. The case of the petitioners is that they have proportionate rights over W.P(c) No.24836 of 2012-D 11 the entire scheme area. It is for the said reason that the change in the approved plan is said to be unsustainable. Since I have already found that no proportionate share in the entire scheme area has been conveyed by Ext.P5 sale deed, the said contention also is unsustainable. For the above reasons, I am not satisfied that the petitioners are entitled to any of the reliefs claimed in the Writ Petition.
This Writ Petition fails and is accordingly dismissed.
(K.SURENDRA MOHAN, JUDGE) rtr/